Adoption of: C.M.; Apl of: B.M. ( 2021 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: ADOPTION OF: C.M., A MINOR : No. 1 MAP 2021
:
: Appeal from the Order of Superior
APPEAL OF: B.M., MOTHER AND D.M. : Court at No. 3060 EDA 2019 dated
AND P.M., MATERNAL GRANDPARENTS : September 3, 2020, reconsideration
: denied October 14, 2020, Reversing
: the Decree dated September 27,
: 2019 by the Montgomery County
: Orphans' Court at No. 2019-A0053
: and Remanding.
:
: ARGUED: April 14, 2021
OPINION
JUSTICE DOUGHERTY DECIDED: July 21, 2021
We granted discretionary review of the Superior Court’s decision invalidating the
involuntary termination of a father’s parental rights where the child’s mother voluntarily
relinquished her own rights but would continue to reside with the pre-adoptive maternal
grandparents and maintain her parental role. The panel viewed the matter to involve
unlawful custody gamesmanship in conflict with our decision in In re Adoption of M.R.D.,
145 A.3d 1117 (Pa. 2016). Although we discern no direct conflict between the proposed
adoption and M.R.D., and disapprove of the Superior Court’s holding to the contrary, we
affirm the panel’s disposition on the alternative grounds discussed herein.1
1 This Court may affirm the order of the court below if the result reached is correct without
regard to the grounds relied upon by that court. Fitzpatrick v. Natter, 961 A.2d 1229, 1244
n.17 (Pa. 2008), citing C.B. ex rel. R.R.M. v. Dep’t of Pub. Welfare, 786 A.2d 176, 178
I. Background
Appellee J.C. (Father) and appellant B.M. (Mother) are the natural parents of C.M.,
born in January of 2016. Father and Mother lived together in Texas for a period of time
prior to C.M.’s birth; however, the child was born in Pennsylvania, and Mother remained
with C.M. in Pennsylvania, residing with her parents (Grandparents). N.T. 6/10/2019 at
54, 56; N.T. 7/17/2019 at 9, 33, 55. Father was present at the hospital for C.M.’s birth
and purchased a crib and changing table for use at Grandparents’ home. N.T. 6/10/2019
at 41, 54; N.T. 7/17/2019 at 19, 55, 61, 95, 124, 128. He returned to Texas, but ultimately
moved back to Pennsylvania in late spring or summer of 2016. N.T. 6/10/2019 at 56,
116; N.T. 7/17/2019 at 54, 62, 99. Unable to reach Mother by phone and believing she
had blocked his calls, Father attempted to contact Mother in person at Grandparents’
home; Mother instructed Father he was not allowed on the property, but accommodated
his request to arrange visits. N.T. 6/10/2019 at 55-59, 117. Between August and
September or early October of that year, Mother brought C.M. to a park to visit with Father
approximately six times, then visits ceased. N.T. 6/10/2019 at 58-59, 116-17; 7/17/2019
at 99. According to Father, after several subsequent unsuccessful attempts to reach
Mother by calling or texting, he was able to reach her in December of 2016 using a
different phone number, and asked to arrange a visit to deliver Christmas presents to
C.M; Mother responded that he was not C.M.’s father and C.M. did not need anything,
and no visit was arranged nor presents delivered. N.T. 6/10/2019 at 15, 59-61, 91; N.T.
7/17/2019 at 106-07, 110-11, 151-52. Father did not attempt to reach Mother about visits
again until November 22, 2017, at which time Mother hung up the phone; Father
attempted to call back several times that day to no avail, and no visit occurred. N.T.
n.1 (Pa. 2001). As was the case in Natter, in this case, the alternative ground is one
which appellee preserved below and urges on this appeal. Id.[J-30-2021] - 2
6/10/2019 at 62-67, 118, 125; N.T. 7/17/2019 at 57, 108-10, 152-53, 169; Orphans’ Court
Exhibit F-3 (Father’s phone record). His next attempted contact with C.M. was in
February of 2019. N.T. 6/10/2019 at 71-72; N.T. 7/17/2019 at 57, 110, 112-14, 154-56.
Beginning in December of 2017, Father spent several weeks in jail following an
incident in which he assaulted and fled from a police officer responding to a request for
mental health assistance placed by Father’s mother. N.T. 6/10/2019 at 26; N.T.
7/17/2019 at 112, 158-59. He pleaded guilty and received a sentence of two years’
probation and a driver’s license suspension. N.T. 6/10/2019 at 26; N.T. 7/17/2019 at 158-
59. Upon his release in February of 2018, Father was hospitalized and received inpatient
treatment for post-traumatic stress disorder (PTSD) through a Veterans Affairs (VA)
hospital until April 2018, and then resided in a transition house for veterans until October
2018 while his medication was monitored. N.T. 6/10/2019 at 17; N.T. 7/17/2019 at 113-
14. Since then, he has resided in a VA-subsidized home with his then-girlfriend, now-
wife, A.S., her two children, and their child together who was born in early 2019. N.T.
6/10/2019 at 11-12, 96, 99-100; N.T. 7/17/2019 at 114, 127. On weekends he has
custody of his two older children, born in 2012 and 2014. N.T. 6/10/2019 at 24, 40, 96-
97, 114; N.T. 7/17/2019 at 123. Mother is in contact with Father’s aunt as well as the
mother of Father’s older children; she has provided photographs of C.M. to Father’s aunt,
and the children have had some ongoing contact with C.M. who they know is their sibling.
N.T. 6/10/2019 at 39-42, 71-72, 105, 113; N.T. 7/17/2019 at 40-41, 53-54, 58, 115.
The next and final time Father attempted to reach Mother about visiting C.M. was
February 19, 2019, and after a brief exchange she hung up the phone; Father attempted
to call back several times, and Mother responded with a text instructing Father not to
contact her again. Orphans’ Court Exhibit F-3; N.T. 6/10/2019 at 71; N.T. 7/17/2019 at
57, 110, 112-16, 154-56. It is undisputed that Father has not seen C.M., or provided any
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gifts, letters, supplies, or financial support, since autumn of 2016, while Mother and
Grandparents have shared caregiving responsibilities and provided generously for C.M.’s
needs and welfare since birth. Orphans’ Court Opinion, 9/26/2019, at 4, 8, 10, 13.
On February 28, 2019, Father filed a complaint for custody, seeking to establish
visitation with C.M. and gradually increase his involvement to shared custody. Orphans’
Court Exhibit F-4, Complaint for Custody at 3; N.T. 6/10/2019 at 68, 70; N.T. 7/17/2019
at 75, 78, 95-96, 118-19. On March 13, Mother filed a complaint for child support, and
Father complied with the order for paternity testing which confirmed his status as the
biological father of C.M. N.T. 6/10/2019 at 81, 83, 85-86; N.T. 7/17/2019 at 75-76, 116-
17. Father and Mother both participated in custody mediation required by the county’s
domestic relations court, but reached no agreement. N.T. 6/10/2019 at 74; N.T.
7/17/2019 at 96, 173. Father and Mother attended a custody conciliation conference
before a hearing officer, but again reached no agreement. N.T. 6/10/2019 at 74-76; N.T.
7/17/2019 at 96-97, 173. The conciliation report issued on April 3, 2019. N.T. 6/10/2019
at 76-77, 79-80.
On April 15, 2019, Grandparents, joined by Mother, filed a petition to involuntarily
terminate Father’s parental rights, averring grounds existed under Subsection 2511(a)(1)
of the Adoption Act, 23 Pa.C.S. §§2101-2938 (the Act), which allows termination of
parental rights if “[t]he parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a settled purpose of
relinquishing parental claim to a child or has refused or failed to perform parental duties.”
Orphans’ Court Docket, entries 4/15/2019, 4/26/2019; Petition for Involuntary Termination
of Parental Rights of [J.C.], Biological Father at ¶5; 23 Pa.C.S. §2511(a)(1). On April 29,
2019, Mother withdrew her complaint for child support. N.T. 6/10/2019 at 86-87.
Thereafter, the domestic relations court issued a stay of the custody proceedings, Mother
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filed a petition to voluntarily relinquish her parental rights to C.M., Grandparents filed a
petition to adopt, and the matter proceeded to orphans’ court for an evidentiary hearing
on the termination of parental rights petitions.2 N.T. 6/10/2019 at 86; N.T. 7/17/2019 at
85; Orphans’ Court Docket, entries 4/26/2019, 4/30/2019.
Regarding the reasons for pursuing the adoption by Grandparents, the orphans’
court found the testimony of Mother and maternal grandfather (Grandfather) credible.
Orphans’ Court Opinion, 9/26/2019, at 11. Mother testified she has lupus, a common
autoimmune disease that affects her kidneys, and scleroderma, a rare build-up of
collagen in the body that hardens skin and connective tissues including organs, joints,
and muscles; she stated there is not much known about scleroderma, she does not make
attempts to research it, and it is usually fatal within a period of ten years, though the
prognosis among different individuals varies. N.T. 7/17/2019 at 35-38. She testified she
receives treatment from three physicians approximately every three months which
includes medication, and she experiences some bad days when pain and stiffness make
it difficult to move, though currently she maintains a regular routine of school, work, and
sharing care for C.M. with Grandparents without physical impediments. Id. at 35-36, 40,
73-75. Regarding the need to pursue adoption, Mother testified, “[Grandparents] know
her routine. They know everything about her. She has full trust in them, and so do I,
about how they’re going to raise her. They have always helped both of us since she’s
been born, and they have helped me my whole life. And unlike [Father], they helped me
with everything, and I have no doubt that they will continue to do so.” Id. at 39. She
further provided that, because she does not know what her own future will be, she needed
to ensure C.M.’s future would be secure with her parents as she has no trust in Father.
2 Father, Mother, and Grandparents were represented by counsel throughout the
orphans’ court proceeding. Legal counsel was appointed for C.M. by court order dated
May 21, 2019.
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Id. at 63-64, 68. When asked why she sought termination of Father’s rights at this
juncture, as opposed to in either of the previous two years when he had been absent,
Mother testified, “[Father] had no interest in being in my child’s life for those years, so I
never had to worry about petitioning for the relinquishment of his parental rights[,]” and
further agreed it was not until Father filed in court to see C.M. that she decided to file the
termination petition. Id. at 84-85.
Grandfather testified he understands Mother’s prognosis can be debilitating and
fatal, but aside from a couple of bad days, Mother has had no problems caring for C.M.,
and there is no plan to for Mother to move out or change roles following the adoption. Id.
at 11, 13-14, 24, 27-31. Regarding his reason for wanting to adopt C.M., he stated, “I just
want to make sure she’s well taken care of and a [sic] stable home with us. We want to
be consistent with her routines in life and what she knows, with a loving family.” Id. at 14.
Responding to why it was important to secure C.M.’s fate through adoption, he stated, “I
would have no faith in [Father] after the first three years of her life not wanting to
participate with her, and me and my wife having brought her up from when she was a
baby” and “[w]e just want to make sure with education, she’s properly taken care of, all of
her wants and needs.” Id. Asked why the adoption was in C.M.’s best interests, he stated,
“[t]he consistency in her life right now. She is thriving where she’s at. She’s just
surrounded by a loving family, aunts, uncles. Anybody in our family would do anything
for her.” Id. at 23.
Father testified, as a result of his active military duty in 2014, he has PTSD and a
hip injury which required two surgeries; he receives veterans’ benefits and disability
payments due to the hip injury, and these are his only income sources. N.T. 6/10/2019
at 20-22, 25, 37, 43-53; N.T. 7/17/2019 at 101-05, 124-25, 146. He testified that each
time he attempted to contact Mother, she either would not answer, or told him he was not
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C.M.’s father and hung up the phone; however, Father also conceded Mother had said
he was not “a” father, and “just a sperm donor,” and the orphans’ court found him not
credible regarding any of his testimony he questioned paternity. N.T. 6/10/2019 at 55-
56, 65-67, 106-07, 117; N.T. 7/17/2019 at 130-31; Orphans’ Court Opinion, 9/26/2019, at
6. Father testified he believed Mother would attempt to raise harassment charges against
him if he made more contact as a result of a phone call he received; the orphans’ court
found this claim to lack specificity and corroboration. Orphans’ Court Opinion, 9/26/2019,
at 5. Father did file to enforce custody of his older children when they were small, which
he achieved through agreement with their mother and without legal assistance; he admits
he knew how to pursue custody of C.M., but did not do so until February of 2019, then
believing it was his only option. N.T. 6/10/2019 at 97-98, 114-15; N.T. 7/17/2019 at 125.
He testified that children were not allowed to visit at the transition housing program where
he lived in 2018, and admits he did not attempt contact with C.M. immediately upon
returning home in October, waiting until February 2019. N.T. 7/17/2019 at 113-14. Father
and A.S. testified he has some physical limitations due to his hip injury, but he provides
care and support for all of their children. N.T. 6/10/2019 at 25, 100; N.T. 7/17/2019 at
123, 127-28, 144-49.
Father further testified he received photos and learned about C.M.’s activities
through his aunt who was in contact with Mother, and he wanted to begin seeing C.M.
gradually, amenable to a supervised setting. N.T. 7/17/2019 at 71-72, 115, 118-19.
Following his receipt of the conciliator’s April 3, 2019 report, Father began researching
options for reconciliation or reunification therapy with C.M., and made arrangements for
a VA program to subsidize a private therapy provider at no cost to Father or Mother. N.T.
6/10/2019 at 76-81. Father then received Grandparents’ petition to terminate his parental
rights in mid-April, and the therapy never began. N.T. 6/10/2019 at 11; N.T. 7/17/2019 at
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97. Father agreed he had not been a father to C.M. in 2017 and 2018, and she had no
bond with him.3 N.T. 6/10/2019 at 109; N.T. 7/17/2019 at 143.
The orphans’ court believed “[t]he first factual question requiring resolution is
whether the birth father, for a period of more than six months, has failed or refused to
perform parental duties[,]” and — noting Father took no steps through legal channels to
seek custody or visitation of C.M. in 2016, 2017, or 2018 despite having done so
successfully, without the aid of an attorney, for his older two children — concluded Father
failed and refused to parent C.M. for a period of over two years. Orphans’ Court Opinion,
9/26/2019, at 2-5.
The orphans’ court then considered Father’s explanation for his failure to parent
his child, while noting settled jurisprudence requires a parent to affirmatively perform
parental duties and exercise reasonable firmness in the face of obstacles to maintaining
a place of importance in a child’s life. Id. at 2, 5-10, citing, inter alia, Matter of Adoption
of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998) (if evidence establishes failure to
perform parental duties or settled purpose of relinquishing parental rights, the court must
consider (1) the parent’s explanation for his or her conduct; (2) the post-abandonment
contact between parent and child; and (3) the effect of termination of parental rights on
the child pursuant to Section 2511(b)); In re Orwick’s Adoption, 347 A.2d 677, 680-81
(Pa. 1975) (evaluating totality of the circumstances, noncustodial parent’s four attempts
to contact child through the mail in the 22 months before the hearing did not demonstrate
reasonable firmness). The court found “[a]lthough birth mother, through her rejection of
his requests, contributed to his lack of contact with the child, birth father in this case made
no serious and sustained effort to create and maintain a relationship with the child or to
3 Father also objected to Mother’s voluntary relinquishment of her parental rights. N.T.
7/17/2019 at 202-03.
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provide support to her in any way for a period of more than two years.” Id. at 8. The court
further observed,
[i]t is true that birth mother decided that she did not wish to continue a
relationship with birth father and that after six or seven visits in 2016, she
decided that she did not wish her child to have visits with the birth father. It
is true that she did not answer all of his phone calls and communicated to
him that she did not need his help and did not consider him to be acting as
a father to her daughter, and that she did not desire any further
communication from him. Nevertheless, birth father testified that he only
tried to call her on two occasions in 2016 and 2017. He made no other
efforts whatsoever to see or support his child. Even though he had
successfully filed a petition as a self-represented litigant seeking visits with
his two older children, and thus knew how to file such a complaint, he took
no such action to file a custody complaint with respect to this child until she
was over three years old in February of 2019. While mother was not
cooperative with father and did not make it easy for him to see this child,
this court simply cannot conclude that two phone calls in over two years
constitute a diligent effort to act as a father.
Id. at 9-10. The orphans’ court thus determined Father did not exercise reasonable
firmness to establish a relationship with C.M. and there was no post-abandonment
contact with the child for the court to consider. The court further concluded clear and
convincing evidence demonstrated grounds to terminate his parental rights pursuant to
Subsection 2511(a)(1) of the Act. Id.
Addressing Father’s argument the proposed adoption was a contrived effort to
deprive him of his parental rights, the orphans’ court found the testimony of Mother and
Grandfather credible regarding their reasons for seeking the adoption, i.e., in light of
Mother’s diagnoses “which are debilitating and may prove fatal[,]” the proposed adoption
would provide C.M. with the stability of being raised by family members who have cared
for C.M. since birth. Id. at 10. Citing Father’s testimony admitting he shared no parental
bond with C.M., the court further determined C.M. would suffer no detriment as a result
of the termination of Father’s rights, and the proposed adoption arrangement would best
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meet C.M.’s needs and welfare “under the unusual circumstances” of Mother’s medical
condition and voluntary relinquishment of her own rights to allow the adoption to proceed,
thereby meeting the Act’s additional requirements under Subsection 2511(b). Orphans’
Court Opinion, 10/31/2019, at 3 (opinion pursuant to Pa.R.A.P. 1925(a)); Orphans’ Court
Opinion, 9/26/2019, at 12, 13; see 23 Pa.C.S. §2511(b) (court “shall give primary
consideration to the developmental, physical and emotional needs and welfare of the
child”). By separate decrees issued September 27, 2019, the orphans’ court terminated
the parental rights of Father and Mother.
Father appealed, and in the pertinent part of his Rule 1925(a) statement of errors,
he generally challenged the sufficiency and weight of the evidence relied on to terminate
his parental rights pursuant to 23 Pa.C.S. §§2511(a)(1) and (b).4 See Concise Statement
of Errors Complained of on Appeal at ¶¶2, 3, 6. Father rephrased his statement of the
issues in his brief to the Superior Court, still challenging the sufficiency of the evidence
supporting the termination of his parental rights pursuant to Subsections 2511(a)(1) and
(b), but also arguing the termination did not promote the Adoption Act’s purpose or intent
as provided in this Court’s decision in M.R.D., which, according to Father, required the
proposed adoption to create a “new family unit” that was not evident in this case given
4 Specifically, Father claimed: “[t]he trial court committed an error of law and/or abused
its discretion by finding that Petitioners proved by clear and convincing evidence that
termination of Respondent/Appellant’s parental rights was warranted pursuant to 23
Pa.C.S. §2511(a)(1)[;]” “[t]he trial court committed an error of law and/or abused its
discretion by finding that C.M.’s developmental, physical and emotional needs and
welfare are best served by terminating Respondent/Appellant’s parental rights, pursuant
to 23 Pa.C.S. §2511(b)[;]” and “[t]he trial court abused its discretion by drawing
unreasonable conclusions based on the record and/or failing to give appropriate weight
or analysis to the evidence and testimony presented.” Concise Statement of Errors
Complained of on Appeal at ¶¶2, 3, 6.
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mother’s uninterrupted parental role despite the relinquishment of her rights. See
Appellant’s Brief to the Superior Court at i, 2, 21-25. Grandparents, Mother, and Child’s
counsel each echoed the orphans’ court’s analysis, arguing Father’s lack of effort since
2016, his minimal attempted phone calls, his lack of contact with the child during the six
months preceding the filing of the termination petition, his failure to pursue custody
sooner, and his own admission he had not been a father to C.M. despite caring for his
other children constituted a statutory failure of parental duty and did not demonstrate
reasonable firmness to maintain a place of importance in C.M.’s life. In addition, they
argued C.M. would not be harmed by the termination of Father’s rights because she had
no bond with him, and the adoption by Grandparents was in her best interests due to their
ability and desire to continue to provide an established, safe, and loving home for C.M. in
the event Mother is unable to care for her. See Appellee-Grandparents Brief to the
Superior Court at 7-9, 11-13; Appellee-Mother’s Brief to the Superior Court at 15-18, 20-
24, 26-29; Child’s Counsel’s Brief to the Superior Court at 12-15, 18-20.5
5 Following the submission of briefs to the Superior Court, the scheduled oral argument
session was canceled due to court closures resulting from the COVID-19 pandemic.
Father requested a continuance to reschedule the argument rather than submit the case
on briefs. See 3060 EDA 2019, Father’s Application for Continuance of Oral Argument.
Each of the appellees objected to the request, averring all parties had fully briefed the
issue, the issue was not novel or unusual, the applicable legal principles are well-settled,
and the child’s need for resolution of the matter outweighed any benefit of further
argument. See 3060 EDA 2019, Mother’s Answer to Application for Continuance at 2-
(“All parties submitted full, substantial, and carefully argued positions and made
abundantly clear . . . the legal assertions of each party[;]” the matter “does not raise any
novel or unusual issues, is quite similar to other parental termination matters, [and]
includes only arguments by parties which have been raised similarly and addressed by
this [c]ourt hundreds of times[.]”), Child’s Counsel’s Answer to Application for
Continuance at 2-3 (“It is not in the best interest for the child for there to be any further
delay in this matter.”), Grandparents’ Letter in Lieu of Answer (joining Mother’s and Child’s
Counsel’s Answers). The Superior Court denied Father’s request and proceeded on
briefs. See 3060 EDA 2019, Order dated 4/17/2020.
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In an unpublished opinion, a divided panel of the Superior Court vacated the order
terminating Father’s parental rights. In re Adoption of C.M., 3060 EDA 2019, 2020 WL
5269235 (Pa. Super., Sept. 3, 2020) (unpublished memorandum). The panel majority did
not address Father’s claim the evidence was insufficient to support the involuntary
termination of his parental rights, but instead viewed his argument that the termination
did not promote the legislative intent of the Adoption Act as implicating a preliminary
question of whether a valid proposed adoption was before the orphans’ court. Id. at *4.
The majority regarded the case as “an unrestrained custody dispute that belongs in family
court,” and opined the termination of Father’s parental rights to effect the proposed
adoption arrangement was contrary to public policy as articulated in M.R.D. Id. at *1, *5
n.7.
The majority explained M.R.D. involved a similar issue, i.e., the involuntary
termination of a father’s parental rights to allow the maternal grandfather to adopt the
grandchildren he helped to raise, except the unmarried mother in that case sought to
retain her own parental rights. Id. at *6. The M.R.D. Court reversed the termination of
father’s parental rights, reasoning, in part, “‘[t]he purpose behind the termination or
relinquishment of an existing parent’s rights prior to an adoption is to facilitate a new
parent-child relationship between the child and the adoptive parent, and to protect the
integrity and stability of the new family unit’” and, “‘[t]hus, where no new parent-child
relationship is contemplated, the involuntary termination of parental rights is not permitted
under the Adoption Act.’” Id. at *7 (emphasis omitted), quoting M.R.D., 145 A.3d at 1120,
1127-28. The M.R.D. Court additionally commented that permitting the grandfather to
adopt and co-parent children as a legal parent along with mother would “open the door
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for misuse of adoption proceedings by spiteful parents as a means to involuntarily
terminate the rights of unwanted parents[,]” and, “[g]iven that the complete and
irrevocable termination of parental rights is one of the most serious and severe steps a
court can take, we must ensure that we do not open the floodgates to such
gamesmanship.” Id., quoting M.R.D., 145 A.3d at 1129. Relying on these statements
from the majority opinion in M.R.D., and noting the orphans’ court specifically endorsed
the credibility of Mother’s and Grandfather’s testimony — which indicated Mother’s
parental role would not change as a result of the adoption, and Mother did not consider
attempting to terminate Father’s parental rights until he attempted to enforce them — the
panel majority concluded the termination of Father’s rights in anticipation of adoption by
C.M.’s grandparents was against public policy pursuant to M.R.D., both because it was
gamesmanship triggered by Father’s custody claim to exclude Father if Mother’s health
falters, and because the proposed adoption would not create a new family unit or new
parent-child relationship. Id. at *5-8, *8 n.9.
Judge Pellegrini dissented, viewing the majority’s opinion as improperly adding a
public policy requirement to the Adoption Act, specifically, that the proposed adoption
must form a “new family unit,” where no such requirement appears in the text of the
statute. Id. at *9, *11, *12 (Pellegrini, J., dissenting). The dissent distinguished M.R.D.,
observing the discrete issue in that case was whether the mother could be excused from
the Act’s requirement that her parental rights be terminated in order to free the children
for adoption. The dissent noted the M.R.D. Court recognized mother had to show the
circumstances met the “cause” exception to the Act’s requirements pursuant to Section
2901 in order to avoid relinquishing her own parental rights, and the Court determined
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cause was not shown. Id. at *11; see 23 Pa.C.S. §2901 (“Unless the court for cause
shown determines otherwise, no decree of adoption shall be entered unless the natural
parent or parents’ rights have been terminated . . . and all other legal requirements have
been met.”). Because Mother relinquished her parental rights in this case, the dissent
reasoned there was no such defect in the proposed adoption requiring a cause analysis,
and considered the majority’s requirement of a “new family unit” as improper where the
statutory criteria are explicitly met and the adoption petitioners were otherwise entitled to
proceed. Id. at *12. In addition, noting the orphans’ court in the present case found
Mother’s and Grandfather’s reasons for pursuing the adoption to be credible, but found
Father not credible, the dissent viewed the majority’s analysis as disturbing the lower
court’s credibility determinations and factual findings in contravention of an appellate
court’s standard of review, and would have deferred to the orphans’ court’s findings that
the statutory grounds for involuntarily terminating Father’s parental rights were met. Id.
at *13-15.6
We granted the petition for allowance of appeal filed by Mother and Grandparents
(together, appellants) to consider the propriety of the Superior Court’s decision, and
specifically to consider whether the panel majority misapplied the holding of M.R.D., or
improperly disturbed the factual and credibility findings of the orphans’ court to discern
the proposed adoption was custody gamesmanship. In re Adoption of C.M., 243 A.3d
970 (Pa. 2021) (per curiam).
II. Arguments
6 Grandparents, Mother, and Child’s Counsel each filed an application for reargument
before an en banc panel, which the Superior Court denied. See 3060 EDA 2019, Order
dated 10/14/2020 (per curiam).
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Appellants argue M.R.D. involved only “‘whether a parent and a grandparent . . .
may establish cause under Section 2901 [of the Adoption Act] to waive the requirement
that the parent relinquish her parental rights when the grandparent seeks to adopt that
parent's children — his grandchildren[,]’” whereas here, there is no request for good-
cause relief because Mother voluntarily relinquished her rights and all of the Act’s other
requirements are met. Appellants’ Brief at 22-23 (ellipses added), quoting M.R.D., 145
A.3d at 1127. Further distinguishing their case from M.R.D., in which the Court
considered the confusing relationships resulting from the proposed adoption in its refusal
to apply the cause exception, appellants argue, here, Grandparents are in a lateral marital
relationship, and the adoption does form a new family unit — that is, Mother and Father
would no longer have legal ties to the child, and Grandparents become the new legal
parents with all the parental rights and obligations that entails. Id. at 24-25, 36-40, citing
In re B.E., 377 A.2d 153, 156 (Pa. 1977) (“Termination of parental rights permits the child
and the adoptive parent or parents to establish a new parent-child relationship through
adoption.”) (emphasis added by appellants). They contend the panel majority’s
determination below that a new family unit is required by the public policy of the Adoption
Act, and was not demonstrated through the proposed adoption by Grandparents in this
case, created a new standard that is not part of the statute, is contrary to the Act’s
pronouncement that “‘[a]ny individual may become an adoptive parent[,]’” and constructs
a public policy that prevents permanency and stability for children who are already being
cared for by their prospective adopters when parental rights are terminated or
relinquished, simply because there would be no new family roles formed. Id. at 16
(brackets added), quoting 23 Pa.C.S. §2312; id. at 51. In appellants’ view, the panel
[J-30-2021] - 15
majority incorrectly determined custody law should apply to this matter, as their petitions
sought a termination of parental rights, not custody, and they were therefore entitled to
judgment on the grounds established by the Adoption Act, not the custody statute. Id. at
40-44. Appellants further assert the panel majority “improperly ignored and totally
disregarded and disturbed the credibility findings of the [t]rial [c]ourt that this adoption was
sought for a proper purpose and would promote the child’s needs and welfare, all of which
is contrary to and beyond the bounds of traditional and longstanding appellate review
standards.” Id. at 45. Reiterating the orphans’ court’s findings supporting the grounds
for termination under the Act’s Subsections 2511(a)(1) and (b) — specifically: Father
failed to perform parental duties for over two years, Father’s explanation was “inadequate
and inconsistent[,]” there was no bond between child and Father, the child’s needs and
welfare were already met by Grandparents and would continue to be met by the adoption,
the proposed adoption appropriately provided stability for C.M. given Mother’s medical
conditions, and that Mother and Grandfather were “credible regarding their reasons for
seeking to have the grandparents adopt this child” — appellants argue the Superior Court
was required to accept these determinations but the panel majority improperly
disregarded them in support of Father’s claim the adoption was contrived and
inappropriate without addressing the merits of his appeal. Id. at 45-49 (appellants’
emphasis removed), quoting Orphans’ Court Opinion, 9/26/2019, at 6, 11.
Child’s counsel advances substantially similar arguments on behalf of C.M.,
agreeing with appellants that the orphan’s court specifically and deliberately considered,
addressed, and rejected Father’s claim the adoption was contrived or pretextual based
upon the evidence, and further arguing the panel majority’s reversal of that determination
[J-30-2021] - 16
supplants its own interpretation of the significance of Father’s custody filing after his
lengthy absence, reflecting a departure from judicial standards and undermining the trial
court’s role as factfinder. Child’s Counsel’s Brief at 16. Child’s counsel asserts the
panel’s holding sets a problematic precedent which would prevent grandparents or other
kinship caregivers from adopting the children in their care if a natural parent whose rights
are terminated or relinquished remains involved, impacting not only cases like C.M.’s, but
also the myriad of cases involving children whose parents are afflicted by other
incapacities such as parental substance abuse, mental illness, incarceration, or domestic
violence, or which result from child abuse or neglect. Id. at 17-19.
In response, Father acknowledges the ultimate legal issue addressed in M.R.D.
involved the Adoption Act’s cause exception which is not invoked in this case due to
Mother’s voluntary relinquishment; however, he argues there is otherwise no
considerable factual difference due to Mother’s admission her maternal role will not
change as a result of her forfeiture of parental rights. Appellee’s Brief at 10. He
characterizes this case as the next step in an evolution of cases striking down one
parent’s efforts to evade custody court and dispose of unwanted involvement by the other
parent. Specifically, Father points to B.E., where an unmarried mother petitioned to
terminate the father’s rights with no proposed adoption pending, and M.R.D., where an
unmarried mother petitioned to terminate the father’s rights, while retaining her own, with
maternal grandfather as the proposed adoptive co-parent; in both cases, this Court
rejected the petitioning parent’s attempts, and Father requests we likewise “rebuff
Mother’s attempt to terminate his parental rights in retaliation for his pursuit of custody
and in promotion of an adoption which fails to create any new familial roles or
[J-30-2021] - 17
relationships.” Id. at 11-13, citing B.E., 377 A.2d at 154-56 (termination of parental rights
not permitted where no adoption was pending; purpose of involuntary termination
provisions of Adoption Act “is not to punish an ineffective or negligent parent”); M.R.D.,
145 A.3d at 1118, 1129-30 (upholding principles from B.E.; termination of parental rights
not permitted where contemplated adoption did not create new family unit). Noting the
panel’s reliance on M.R.D.’s warning against custody gamesmanship, Father argues such
gamesmanship is evident here, where Father not only filed a custody complaint but fully
participated in the court’s requirements, and Mother’s testimony confirmed it was not until
he asserted the custody claim that she considered the termination of his parental rights.
Id. at 12-13, citing M.R.D. 145 A.3d at 1129. Recognizing his parental rights are
fundamental rights, Father contends the Adoption Act is being used against its purpose
here, not for the best interests of C.M., but to punish him for not being a model parent,
and to reward Mother for alienating him. Id. at 14.
Furthermore, Father asserts the custody gamesmanship he and the panel majority
describe would have been thwarted had the orphans’ court not erred by concluding there
was clear and convincing evidence to terminate Father’s parental rights pursuant to
Subsection 2511(a)(1) of the Act, which he raised in his appeal below and the Superior
Court did not address. He thus argues, even if this Court decides the panel majority erred
in its application of M.R.D., the evidence did not support the termination of his parental
rights because the orphans’ court did not properly consider the obstacles he faced, or his
initiation and active participation in custody proceedings as post-abandonment contact.
Id. at 16-17. He indicates, while the orphans’ court may assess the entire history of a
case, the most critical period, by statute, is the six months immediately preceding the
[J-30-2021] - 18
filing of the termination petition — during which time his attempts to enforce his parental
rights had never been more assertive — yet the court focused on his conduct outside of
that period. Id. at 17-18, citing In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (“[I]t is
the six months immediately preceding the filing of the petition that is most critical to [the
court’s] analysis” under Subsection 2511(a)(1)). Father argues the orphans’ court did not
properly consider Mother’s intentional obstruction of his relationship with C.M. Id. at 19-
23, citing, inter alia, In re B., N.M., 856 A.2d 847, 855-56 (Pa. Super. 2004), appeal
denied, 856 A.2d 847 (Pa. 2005) (per curiam) (“Where a non-custodial parent is facing
termination of his or her parental rights, the court must consider the non-custodial parent’s
explanation . . . including situations in which a custodial parent has deliberately created
obstacles and has by devious means erected barriers intended to impede free
communication and regular association between the non-custodial parent and his or her
child.”); In re E.S.M., 622 A.2d 388, 393 (Pa. Super. 1993) (“[I]f the failure to perform
parental duties is the result of obstructive tactics, such failure is excused[;] to obtain the
benefit to that excuse, a parent must exhibit reasonable firmness in attempting to
overcome the obstructive behavior.”) (citations and quotations omitted).
Father further argues his actions and delay in filing for custody “may not be
commendable, [but] were reasonable given his circumstances, particularly in light of
Mother’s resolve to keep Father out of the child’s life[,]” as well as his incarceration,
hospitalization, inability to have visits with minors at his transitional housing program, and
limited income of VA benefits and military disability. Id. at 23-25, citing In re Adoption of
C.M.W., 603 A.2d 622, 626 (Pa. Super. 1992) (court “cannot sanction termination of the
rights of imperfect parents” absent “clear intent to relinquish his rights[;]” court cannot
[J-30-2021] - 19
permit such intrusion into the child’s rights, including “the right to know her father with all
his flaws”) (internal citation, quotation, and brackets omitted). Finally, Father argues, if
his active pursuit of custody is considered to be insufficient effort, this will encourage
alienated parents to force themselves into their children’s lives using more distasteful
methods, e.g., initiating a “custody grab” from school or daycare without the other parent’s
knowledge. Id. at 27.
III. Analysis
A parent’s right to make decisions concerning the care, custody, and control of his
or her children is among the oldest of fundamental rights. In re D.C.D., 105 A.3d 662,
667 (Pa. 2014); Troxel v. Granville, 530 U.S. 57, 65 (2000), citing, inter alia, Meyer v.
Nebraska, 262 U.S. 390, 399, 401 (1923) (“liberty” protected by Due Process Clause
includes right of parents to “establish a home and bring up children” and “to control the
education of their own”). The time-tested law of the Commonwealth requires that we
balance this intrinsic parental interest within the context of a child’s essential needs for a
parent’s care, protection, and support. See, e.g., In re T.S.M., 71 A.3d 251, 271 (Pa.
2013) (children’s needs and welfare necessitated termination of parental rights despite
strong but damaging bonds). We readily comprehend the significant gravity of a
termination of parental rights, which has far-reaching and intentionally irreversible
consequences for the parents and the child. See In re P.G.F., 247 A.3d 955, 963 (Pa.
2021); B.E., 377 A.2d at 155-56 (purpose of termination of parental rights is to allow for
adoption); see also T.S.M., 71 A.3d at 268 (termination of parental rights creates legal
orphans). For these reasons, the burden of proof is upon the party seeking termination
to establish by “clear and convincing” evidence the existence of the statutory grounds for
[J-30-2021] - 20
doing so. Matter of Adoption of G.T.M., 483 A.2d 1355, 1356 (Pa. 1984); In re T.R., 465
A.2d 642, 642-43 (Pa. 1983) (applying the standard articulated in Santosky v. Kramer,
455 U.S. 745 (1982)). “[C]lear 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 hesitance, of the truth of the precise facts in issue.’” Charles E.D.M.,
708 A.2d at 91, quoting Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994). Because
of this serious impact attending the termination of parental rights, “‘it is important that a
judicial decree extinguishing such rights be based solely on competent evidence.’” In re
A.J.R.-H., 188 A.3d 1157, 1171 (Pa. 2018), quoting In re Sanders Children, 312 A.2d 414,
417 (Pa. 1973).
In cases concerning the involuntary termination of parental rights, appellate review
is limited to a determination of whether the decree of the termination court is supported
by competent evidence. See In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2016)
(Opinion Announcing the Judgment of the Court), citing Adoption of B.D.S., 431 A.2d 203,
207 (Pa. 1981). This standard of review corresponds to the standard employed in
dependency cases, and requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported by the record, but it does
not require the appellate court to accept the lower court’s inferences or conclusions of
law. See In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012); In re R.J.T., 9 A.3d 1179,
1190 (Pa. 2010). That is, if the factual findings are supported, we must determine whether
the trial court made an error of law or abused its discretion. See S.P., 47 A.3d at 826.
An abuse of discretion does not result merely because the reviewing court might have
reached a different conclusion; we reverse for an abuse of discretion “only upon
[J-30-2021] - 21
demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will.” Id.
Thus, absent an abuse of discretion, an error of law, or insufficient evidentiary support for
the trial court’s decision, the decree must stand. See id. at 821; Atencio, 650 A.2d at
1066. “We have previously emphasized our deference to trial courts that often have first-
hand observations of the parties spanning multiple hearings.” T.S.M., 71 A.3d at 267.
However, “[w]e must employ a broad, comprehensive review of the record in order to
determine whether the trial court’s decision is supported by competent evidence.” S.P.,
47 A.3d at 821 (internal citation and quotation omitted).
Subsections 2511(a) and (b) of the Adoption Act set forth the grounds a petitioner
must prove in order for the court to grant an involuntary termination of parental rights.
See 23 Pa.C.S. §2511. Subsection (a) provides eleven enumerated grounds describing
particular conduct of a parent which would warrant involuntary termination including, as
is relevant herein, the requisite criteria for establishing parental abandonment pursuant
to Subsection 2511(a)(1). Id. §2511(a). If the trial court finds clear and convincing
evidence supporting the existence of one of the grounds for termination set forth in
Subsection 2511(a), the court must then consider whether termination would best serve
“the developmental, physical and emotional needs and welfare of the child” under
Subsection 2511(b). Id. §2511(b); M.R.D., 145 A.3d at 1120. Section 2512 sets forth the
parties who may file a petition for involuntary termination, including, inter alia, a parent,
an individual standing in loco parentis, or an agency. Id. §2512(a). Where a parent or
other individual — as opposed to an agency — petitions to terminate the rights of the
[J-30-2021] - 22
child’s parent, the petitioner must demonstrate an adoption of the child is anticipated. 7
See M.R.D., 145 A.3d at 1120; L.J.B., 18 A.3d at 1107; B.E., 377 A.2d at 155.
With these settled principles in mind, we turn to the issues presented in the matter
before the Court.
A. M.R.D.8
As the parties and the opinions of the panel below describe, this Court’s decision
in M.R.D. reversed the involuntary termination of a father’s parental rights on the basis
the proposed adoption it would facilitate was not a valid one where the unmarried mother
petitioning for the termination sought to retain her parental rights and the prospective
adoptive parent was the children’s maternal grandfather, i.e., the mother’s father, who
regularly shared parental duties. See M.R.D., 145 A.3d at 1118. In accordance with the
7 Effective December 28, 2020, the General Assembly amended the Adoption Act to
provide an additional exception to this rule, not relevant to the present case, which applies
when the petitioner is a parent and the child is conceived as a result of rape or incest.
See 23 Pa.C.S. §§2512(b)(3), 2514.
8 Initially we note, as explained supra, the statement of errors filed by Father pursuant to
Pa.R.A.P. 1925(a)(2) did not reference this Court’s decision in M.R.D. or claim the
proposed adoption would not facilitate the creation of a new family unit. Because the
orphans’ court lacked the opportunity to fairly consider this argument in light of the
evidence before it, the specific argument might properly be deemed waived. See
Pa.R.A.P. 1925(b)(4)(ii) (Statement shall identify each error appellant intends to assert
“with sufficient detail to identify the issue to be raised for the judge”), (vii) (issues not
included in the Statement are waived); see, e.g., M.G. v. L.D., 155 A.3d 1083, 1092 (Pa.
Super. 2017) (same), appeal denied, 169 A.3d 522 (Pa. 2017) (per curiam). However,
because the Superior Court, sua sponte, decided only this issue in its reversal of the
orphan’s court decision, the issue presents a legal question which does not require further
factual development, and the issue is now fully and adequately briefed before this Court
as a result of our grant of allocatur, we address the panel majority’s application of M.R.D.
in this posture in the interest of expedient clarification of a substantially important issue
impacting children awaiting permanency across the Commonwealth.
[J-30-2021] - 23
Adoption Act and settled jurisprudence, the M.R.D. Court observed a parent seeking to
terminate the rights of another parent must demonstrate a valid adoption is anticipated
for the termination petition to be cognizable, and must strictly comply with all pertinent
provisions of the Act in order for the adoption to be valid. See id. at 1120, citing B.E., 377
A.2d at 155, In re Adoption of R.B.F., 803 A.2d 1195, 1199 (Pa. 2002), and 23 Pa.C.S.
§2512. Further, the Act requires the petitioning parent to consent to the adoption and
relinquish his or her rights, unless the prospective adopter is the petitioning parent’s
spouse. See id. at 1120-21, citing 23 Pa.C.S. §§2711, 2903. Where a petitioner does
not strictly comply with the Act’s requirements but demonstrates cause for
noncompliance, the trial court typically has the discretion to enter an adoption decree,
pursuant to Section 2901 of the Act. See id. at 1121, citing 23 Pa.C.S. §2901 (“Unless
the court for cause shown determines otherwise, no decree of adoption shall be entered
unless the natural parent or parents’ rights have been terminated . . . and all other legal
requirements have been met.”); R.B.F., 803 A.2d at 1201-02. Because the mother in
M.R.D. wished to be excused from strict compliance with the Act’s requirement she
terminate her own rights to allow the adoption, and the prospective adopter — her own
father — was not (and could not be) her spouse, the sole issue before the Court was
whether such a proposed adoption could constitute “cause shown” under Section 2901.
See id. at 1123, 1127. Despite the orphans’ court’s specific determination that the
proposed adoption of M.R.D. was legitimate and in the children’s best interests, we held
Section 2901 cause could not be shown in such an instance and, therefore, the proposed
adoption was not valid, which precluded involuntary termination of the father’s parental
rights. See id. at 1130. In addition to the host of unique legal and practical complications
[J-30-2021] - 24
arising from the situation in M.R.D., we reasoned the purpose of the termination or
relinquishment of parental rights requirement is to “‘establish a new parent-child
relationship through adoption’” and to “protect ‘the integrity and stability of the new family
unit[,]”’ and we further explained the new, single, family “unit” was one family involving a
horizontal relationship between two parents and freed from the legal encumbrances of
the former legal family, which was not the case where the prospective adopter-
grandfather would continue to share a separate family unit, with all its appurtenant legal
ramifications, with the children’s mother through their separate vertical parent-child
relationship. See id. at 1128-29, quoting respectively, B.E., 377 A.2d at 156, Adoption of
J.D.S., 763 A.2d 867, 871 (Pa. Super. 2000).
Specifically anticipating a situation such as the one now before us, the M.R.D.
Court stated, “[i]f Mother had desired to relinquish her rights to Children, and
assuming arguendo that an adoption by Grandfather and the termination of Father’s
parental rights were in Children’s best interests, Grandfather would be permitted to
adopt Children, and termination of Father’s parental rights would have been
proper, ending our inquiry.” Id. at 1126 (emphasis added). In addition, as keenly
observed by then-Justice, now Chief Justice Baer in his concurrence, the test requiring a
“new family unit” employs “language [ ] not present in Section 2901 or any other provision
in the Adoption Act.” Id. at 1131 (Baer, J., concurring). Furthermore, as we recently
explained in In re Adoption of K.M.G., “[i]t is inappropriate and, indeed, unwise for this
Court to engage in the judicial creation of what amounts to new statutory duties[;]” and
“we must not ‘add, by interpretation, a requirement not included by the General
Assembly.’” 240 A.3d 1218, 1237 (Pa. 2020), quoting Commonwealth v. Giulian, 141
[J-30-2021] - 25
A.3d 1262, 1268 (Pa. 2016). Accordingly, we agree with appellants’ contention the
Superior Court majority erred in its application of M.R.D. Although the new legal parent-
child relationship that would be created through the proposed adoption of C.M. by her
grandparents, despite the anticipated continuing role of Mother insofar as she is able,
appears to meet the parameters of a single new family unit as set forth in M.R.D. —
indeed, it reflects one of the most relied-upon permanency options for children cared for
by kin when parents are incapacitated or unavailable — an assessment for such a
component was not relevant here, where Mother voluntarily relinquished her parental
rights, the proposed adoption would strictly adhere to the provisions of the Adoption Act,
and no cause analysis under Section 2901 is implicated. The Superior Court’s scrutiny
of the prospective post-adoption family unit for adequate “newness” was therefore
erroneous here.
Having determined the panel below improperly applied the M.R.D. cause analysis
principles in this case, we now consider its invocation of M.R.D.’s admonition against
gamesmanship. Commenting on the broader foreseeable consequence of allowing the
maternal grandfather in M.R.D. to adopt and become the legal parent of his grandchildren
while his daughter retained her legal parental rights and obligations — when the Adoption
Act anticipates a parent’s retention of her rights only in an adoption by a spouse — we
observed such an exception to the Act’s provisions 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 . . . 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. Given that the complete and
irrevocable termination of parental rights is one of the most serious and
severe steps a court can take, we must ensure that we do not open the
floodgates to such gamesmanship.
[J-30-2021] - 26
M.R.D., 145 A.3d at 1129 (internal citations and quotations omitted). The
“gamesmanship” of potentially any third party standing in as an adoptive parent, as
forecast in M.R.D., is perhaps a more nuanced quagmire than the retributive filing of a
termination of parental rights petition described by Father and the panel majority in the
present case, but we recognize the danger of approving such petitions filed in the midst
of acrimonious custody battles or in short sequence after a non-custodial parent files a
complaint in custody, as was the case in M.R.D. though it was not then an issue before
the Court. See id. at 1118; id. at 1134-35 (Wecht, J., concurring) (proposed adoption
“lacked the required integrity, inasmuch as it appears to have been initiated merely to
stave off and defeat Father’s claim for custody[;]” custody court has “robust discretionary
authority” to limit or curtail a parent’s custody rights “without resort to the draconian
remedy of termination of parental rights under the adoption laws”); see also L.J.B., 18
A.3d at 1110 (Opinion Announcing the Judgment of the Court) (termination petition filed
by parent absent stepparent adoption would provide parents with “a new, and in our view
dangerous, tactic in heated custody disputes”).
Nevertheless, to the extent the panel majority relied upon aspects of the record not
addressed by the orphans’ court to conclude the termination and adoption petitions
constituted reversible custody gamesmanship — in contravention of the orphans’ court’s
specific determination that credible testimony demonstrated the proposed adoption was
not contrived, and without further analysis — it did so in error.9 See S.P., 47 A.3d at
9 However, we also note, to the extent the orphan’s court made particular credibility
determinations, they related only to Mother’s and Grandfather’s (credible) testimony
“regarding their reasons for seeking to have the grandparents adopt[,]” and Father’s (not
credible) testimony “that he understood birth mother to question his paternity.” Orphans’
[J-30-2021] - 27
826-27 (“[E]ven where the facts could support an opposite result, as is often the case in
dependency and termination cases, an appellate court must resist the urge to second
guess the trial court and impose its own credibility determinations and judgment; instead
we must defer to the trial judges so long as the factual findings are supported by the
record and the court’s legal conclusions are not the result of an error of law or an abuse
of discretion.”); Adoption of S.H., 383 A.2d 529, 532 & n.2 (Pa. 1978) (task of the orphans’
court is to resolve conflicting testimony of witnesses; appellate court may not reweigh the
credibility of witnesses).
We acknowledge the solemn reality that a decree terminating parental rights is
widely regarded as the civil law equivalent to the death penalty, forever obliterating the
fundamental legal relationships between parent and child. See, e.g., Kimock v. Jones,
47 A.3d 850, 855 (Pa. Super. 2012) (“termination of parental rights for all practical
purposes ends the parent/child relationship as unequivocally as the death of the child”)
(emphasis omitted); Administrative Office of Pennsylvania Court’s Office of Children and
Families in the Courts, Pennsylvania Dependency Benchbook, “Termination of Parental
Rights” at §17.1 (3d ed. 2019) (Termination of parental rights “has often been called the
‘death penalty’ of dependency court, because of the seriousness and finality of a
termination order severing all ties between a child and the biological parents.”). Where
simultaneously litigated custody matters conjure the specter of gamesmanship in a
termination proceeding, such a significant final decree warrants the courts’ closest
consideration of whether competent evidence clearly and convincingly proves the precise
Court Opinion, 9/26/2019, at 6, 11. Thus, the Superior Court appears to have relied upon
testimony credited by the orphans’ court to reach the opposite conclusion of the orphans’
court on the specific issue for which the orphans’ court credited the testimony.
[J-30-2021] - 28
elements of the grounds at issue, in a manner “so clear, direct, weighty and convincing”
it betrays no hesitance regarding the truth of the facts in issue.10 Charles E.D.M., 708
A.2d at 91 (internal citation and quotation omitted).
In this case, Father accurately asserts he preserved his claim challenging the
sufficiency of the evidence underlying the termination of his parental rights pursuant to
Subsections 2511(a)(1) and (b) of the Adoption Act. As this issue was fully briefed and
argued by all parties before the Superior Court, but addressed only in dissent, we must
now determine whether we should remand to the Superior Court for consideration of
Father’s sufficiency claim in the first instance, or whether we should resolve it now.
We have explained, appellate review is a review of “the judgment or order before
the appellate court, rather than any particular reasoning or rationale employed by the
lower tribunal[,]” A.J.R.- H., 188 A.3d at 1176 (internal citation and quotation omitted);
therefore, this Court has discretionary authority to affirm an order of a lower court “for any
valid reason appearing from the record[,]” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200
(2009). See also A.J.R.- H., 188 A.3d at 1176, quoting Sec. & Exch. Comm’n v. Chenery
Corp., 318 U.S. 80, 88 (1943) (“‘The reason for this rule is obvious. It would be wasteful
to send a case back to a lower court to reinstate a decision which it had already made
but which the appellate court concluded should properly be based on another ground
within the power of the appellate court to formulate.’”). Father, as appellee in this Court,
10 Moreover, given the finality that results following the termination of one’s parental rights,
and given that litigants have used termination proceedings as a strategic tactic in custody
proceedings, we take this opportunity to admonish any litigant who engages in such
behavior. This type of gamesmanship is intolerable. The use of these tactics should not
be cultivated by counsel, and must stop. Courts should not hesitate to impose sanctions
on those participating in schemes involving the improper use of termination proceedings.
[J-30-2021] - 29
was not aggrieved by the Superior Court’s judgment and was therefore not required to
file a cross-petition for allowance of appeal to protect his unaddressed sufficiency claim.
See Lebanon Valley Farmers Bank v. Commonwealth, 83 A.3d 107, 113 (Pa. 2013)
(“Protective cross-appeals by a party who received the relief requested are not favored.”).
Despite the fact that a considerable portion of Father’s present argument is devoted to
the sufficiency of the evidence underlying the termination of his parental rights, neither
the appellants nor child’s counsel submitted a reply brief providing further response to the
claim. Moreover, C.M., who was three years old at the onset of this litigation, will be
grade-school age by the filing of this decision; we are ever-mindful “[c]hildren are young
for a scant number of years, and we have an obligation to see to their healthy
development quickly.” T.S.M., 71 A.3d at 269. Given the complete record forwarded from
the court below, the very nature of this case, in which the proper legal status of a child
has swayed in the balance for over a third of her lifetime, weighs heavily in favor of a final
resolution without further delay.11 See R.R.M, 786 A.2d at 185. We therefore turn to the
merits of Father’s insufficiency claim.
B. Sufficiency of the Evidence
11 As described supra at note 5, the complete Superior Court record contains appellants’
supplementary assurances their responsive arguments to Father’s sufficiency claim were
fully briefed and involved settled principles such that further argument on the issue was
both unnecessary and detrimental to the child. We agree, and for this as well as the
aforementioned reasons, we view the record as complete on this issue. Moreover, we
are keenly aware of the gravity and time-sensitive nature of the issue, and these are
significant factors in our use of the right-for-any-reason doctrine here. See supra, slip op.
at 29. Notably, a decision to affirm the reversal of a termination of parental rights does
not bear the same finality as a decision to affirm the termination itself, as it does not bar
the filing of a future petition.
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A petitioner seeking to prove grounds for termination under Subsection 2511(a)(1)
must demonstrate by competent, clear and convincing evidence, “[t]he parent by conduct
continuing for a period of at least six months immediately preceding the filing of the
petition either has evidenced a settled purpose of relinquishing parental claim to a child
or has refused or failed to perform parental duties.” 23 Pa.C.S. §2511(a)(1). 12
Though we do not adhere to any strict definition of “parental duty,” a child has a
right to essential parental care, and our jurisprudence reveals certain irreducible qualities
of a parent’s attendant obligation. Foremost, it is a positive duty requiring affirmative
performance. In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (opinion in support of
reversal), quoting In re Adoption of Smith, 194 A.2d 919, 922 (Pa. 1963).
“‘[C]ommunication and association are essential to the performance of parental duty[.]’”
In re K.Z.S., 946 A.2d 753, 761 n.2 (Pa. Super. 2008), quoting In re Adoption of Faith M.,
501 A.2d 1105, 1108-09 (Pa. 1985). “‘[P]arental duty requires that a parent exert himself
to take and maintain a place of importance in the child’s life.’” In re Adoption of R.W.G.,
431 A.2d 274, 277 (Pa. 1981), quoting In re Burns, 379 A.2d 535, 540 (Pa. 1977) (internal
citations and quotation omitted). A parent must “‘exercise reasonable firmness’” in
resisting obstacles placed in the path of maintaining the parent-child relationship, or his
“‘rights may be forfeited.’” S.P., 47 A.3d at 828, quoting In re Adoption of McCray, 331
A.2d 652, 655 (Pa. 1975). “‘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 physical and emotional needs.’” In re Adoption of C.J.A., 204
12 The law does not require a settled purpose of relinquishing a parental claim and a
refusal or failure to perform parental duties, but one or the other. See In re Burns, 379
A.2d at 539 & n.7.
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A.3d 496, 504 (Pa. Super. 2019), quoting B., N.M., 856 A.2d at 855; Adoption of Smith,
194 A.2d at 922.
However, even where the evidence clearly establishes a parent has failed to
perform affirmative parental duties for a period in excess of six months, the court “must
examine the individual circumstances and any explanation offered by the parent to
determine if that evidence, in light of the totality of circumstances, clearly warrants
permitting the involuntary termination [of parental rights].” Orwick, 347 A.2d at 680; see
Charles E.D.M., 708 A.2d at 92; Atencio, 650 A.2d at 1066; Bowman, 666 A.2d at 276
(opinion in support of reversal). We have consistently emphasized “the law regarding
termination of parental rights should not be applied mechanically but instead always with
an eye to the best interests and the needs and welfare of the particular children involved.”
T.S.M., 71 A.3d at 268-69; see Bowman, 666 A.2d at 276 n.2 (opinion in support of
reversal) (legislature’s use of the term “at least six months” indicates evidence of parental
conduct preceding the six-month period may be considered), see also Baby Boy A. v.
Catholic Social Services, 517 A.2d 1244, 1247 (Pa. 1986) (“Once we have determined
that the statutory grounds for involuntary termination of parental rights have been proved,
it is the child’s welfare that is paramount.”) (internal citation and quotation omitted). In
this vein, a wealth of Superior Court jurisprudence instructs trial courts deciding
Subsection 2511(a)(1) cases to consider the whole history of a given case and “not
mechanically apply the six-month statutory provision[,]” although “it is the six months
immediately preceding the filing of the petition that is most critical to the analysis.” B.,
N.M., 856 A.2d at 855; see also In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (same);
C.J.A., 204 A.3d at 504 (same); In re Adoption of Hamilton, 549 A.2d 1291, 1294 (Pa.
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Super. 1988) (“Pennsylvania courts have wisely refused to apply the statutory six-month
requirement mechanically.”).
In further consideration of the totality of circumstances, if competent evidence
establishes the statutory criteria under Subsection 2511(a)(1), we then require three lines
of inquiry: (1) the parent’s explanation for his or her absence; (2) the post-abandonment
contact between parent and child, including a parent’s efforts to re-establish contact; and
(3) consideration of the effect of termination of parental rights on the child pursuant to
Subsection 2511(b). See Charles E.D.M., 708 A.2d at 92 (addressing three lines of
inquiry and reversing termination of parental rights where record contained no evidence
of anticipated effect on children’s well-being), citing, inter alia, Atencio, 650 A.2d at 1066-
67 (upholding orphans’ court’s denial of termination of father’s rights where mother
refused correspondence, gifts, and phone calls from father to child, and would not permit
child to visit father along with siblings), Hamilton, 549 A.2d at 1295-96 (reversing
termination where trial court failed to consider father’s legal efforts to enforce visitation
for three years following two years of absence, and record did not suggest termination
was necessary or served child’s welfare). Unlike grounds for termination predicated on
incapacity of the parent, the focus under Subsection 2511(a)(1) is not the degree of
success a parent may have had in reaching the child, but examines whether, under the
circumstances, the parent has utilized all available resources to preserve the parent-child
relationship. See S.P., 47 A.3d at 828, 830; see also In re Z.P., 994 A.2d 1108, 1117
(Pa. Super. 2010) (“[W]hile sincere efforts to perform parental duties[ ] can preserve
parental rights under subsection [2511](a)(1), those same efforts may be insufficient to
remedy parental incapacity under subsection [2511](a)(2).”) (internal citation and
[J-30-2021] - 33
quotation omitted); In Interest of D.F., 165 A.3d 960 (Pa. Super. 2017) (same), appeal
denied, 170 A.3d 991 (Pa. 2017) (per curiam); In re D.J.Y., 408 A.2d 1387, 1390 (Pa.
1979) (“A finding of abandonment will[ ] not be predicated upon parental conduct which
is reasonably explained or which resulted from circumstances beyond the parent’s
control. It may only result when a parent has failed to utilize all available resources to
preserve the parental relationship.”) (internal citations, quotations, and ellipses omitted);
In re M.A.K., 414 A.2d 1052, 1054 (Pa. 1980) (termination not warranted where
competent evidence supported finding parent’s mental health crisis following traumatic
event caused temporary failure to perform parental duties); B.D.S., 431 A.2d at 207
(where custodial parent prevents contact, noncustodial parent’s performance must be
measured in light of what would be expected by an individual under similar circumstances
of the parent).
Furthermore, while the inquiry at every step must assess the absent parent’s
exercise of reasonable firmness to obstacles, we strenuously condemn obstructive
conduct by the noncustodial parent seeking termination. See B.D.S., 431 A.2d at 208
(“[O]bstructive behavior on the part of the custodial parent aimed at thwarting the other
parent’s maintenance of a parental relationship will not be tolerated, and certainly will not
provide a sound basis for the involuntary termination of parental rights.”); S.H., 383 A.2d
at 532-33 (where evidence showed custodial parent “consistently attempted at all times
to prevent the [non-custodial parent] from . . . exercising any parental rights[,]” the fact
parent “could conceivably have pursued legal action more promptly cannot justify
termination”). Finally, should sufficient evidence not exist to support the necessity of the
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termination decree, the trial court will be deemed to have committed an abuse of
discretion, thus mandating reversal of the decree. See Atencio, 650 A.2d at 1068.
Applying these foundational tenets to the involuntary termination of Father’s
parental rights, we conclude the orphans’ court’s decree is not supported by sufficient
competent evidence. As described supra, the court found Father failed to perform any
parental duties for a period of more than six months — for a period of over two years from
October 2016 to the date of the filing of the termination petition on April 15, 2019 —
concluding “[t]wo isolated phone calls to birth mother in December of 2016 and November
of 2017 do not demonstrate that birth father exercised reasonable firmness[,]” and “[a]s a
result of father’s failure to take further action to have contact with his child, there is no
post-abandonment contact with the child for this court to consider.” Orphans’ Court
Opinion, 9/26/2019, at 8, 10. The court drew an analogy to this Court’s 1975 decision in
Orwick’s Adoption which, acknowledging the court’s obligation to consider the totality of
the circumstances, upheld the termination of the parental rights of a father whose extent
of contact with the child included only one (returned) gift, two cards, and a $50 savings
bond over the course of two years, observing the father had adequate financial means
but did not exercise reasonable firmness and failed to support or visit the child for the
twenty-two months just prior to the hearing. Id. at 9; see Orwick, 347 A.2d at 680-81.
The orphans’ court acknowledged Father’s February 19, 2019 attempted phone call to
Mother and his subsequent custody petition, but the court ultimately reasoned Father had
previously made no written follow up or legal action as a result of his two unsuccessful
phone calls in 2016 and 2017. The court thus deemed Father’s legal efforts were too
[J-30-2021] - 35
late, as he had “sat on his rights” for more than two years. Id. at 11. Our careful review
of the record and the relevant law reveals this was error.
Notably, at the time the Court decided Orwick, the relevant provision of the
Adoption Act enabled involuntary termination of parental rights where the parent’s
“conduct continuing for a period of at least six months either has evidenced a settled
purpose of relinquishing parental claim to a child, or has refused or failed to perform
parental duties[,]” and made no reference to when the six month period was to commence
or expire. Adoption Act of July 24, 1970, P.L. 620, 1 P.S. §311(1) (emphasis added).
Indeed, much of our case law has developed in response to this particular text, under
which grounds for termination exist as the result of any six-or-more-month period of
parental abdication of duty regardless of when during the child’s lifetime it occurred, and
thus necessitated the court’s consideration of a parent’s post-abandonment contact. See
Bowman, 666 A.2d at 276 n.2. (opinion in support of reversal); see generally Hamilton,
549 A.2d at 1295. The General Assembly repealed and replaced that version of the law
with the Adoption Act of October 15, 1980, P.L. 934, now codified at 23 Pa.C.S. §2511,
and in 1992, further amended the text of Subsection 2511(a)(1) to its current form,
enabling involuntary termination of rights when a parent’s “conduct continuing for a period
of at least six months immediately preceding the filing of the petition either has
evidenced a settled purpose of relinquishing parental claim to a child or has refused or
failed to perform parental duties.” 23 Pa.C.S. §2511(a)(1) (emphasis added). This last
change qualified the six-month period of abandonment by adding a specific parameter,
i.e., “immediately preceding the filing of the petition.”
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The orphans’ court in this case set forth its first critical inquiry under Subsection
2511(a)(1) as “whether the birth father, for a period of more than six months, has failed
or refused to perform parental duties.” Orphans’ Court Opinion, 9/26/2019, at 2. It is
clear this was an incomplete statement of the statutory inquiry depicting the text of the
prior version of the provision, and further reflects the orphans’ court’s misguided focus on
Father’s conduct during the period he was absent, prior to the six months preceding the
petition, as well as the court’s lack of consideration for his conduct during the period
immediately preceding the petition. Appellants urge us to overlook this omission in light
of our obligation to avoid mechanical application of statutory time periods. However,
where the General Assembly proactively amends a statute and adds an express,
unambiguous qualifier to existing criteria, we cannot simply ignore it. See 1 Pa.C.S.
§1921. Consequently, though orphans’ courts assessing evidence under Subsection
2511(a)(1) should not apply the relevant six-month period mechanically — but with an
eye to the child’s best interests, see T.S.M., 71 A.3d at 268-69, while acknowledging the
purpose of the provision is not to punish an ineffective parent, see B.E., 377 A.2d at
154 — we reinforce the view that the six-month period immediately preceding the filing of
the petition is the most critical period to evaluate for affirmative conduct or its absence,
and courts must address it. See C.J.A., 204 A.3d at 504-05 (“Because the Adoption Act
require[s] the court to focus its attention on the six months immediately preceding the
filing of the petition, and because the record supports the court’s decision that Father
made substantial efforts to perform his parental duties during that time, [p]etitioners are
not entitled to relief.”).
[J-30-2021] - 37
It is crystal clear, and of vital importance in the present case, that a parent’s legal
efforts to enforce custodial rights demonstrate affirmative performance of a positive
parental duty. For example, in the Superior Court’s oft-cited opinion, Adoption of
Hamilton, a father petitioned the court for visitation following two years of inexplicable
absence, which he was granted; he further successfully petitioned to enforce visitation
when the mother did not cooperate, and when, two months later, the child’s mother filed
a petition to terminate the father’s parental rights, which was granted, he successfully
petitioned to continue visitation pending the termination matter. See Hamilton, 549 A.2d
at 1295. The Superior Court reversed the decree, viewing the records from the custody
court proceedings as evidence of the father’s “affirmative demonstration of his intention
to assume parental responsibilities[,]” despite his earlier two-year absence, and
concluding the orphans’ court erred in not evaluating the father’s post-abandonment
behavior.13 Id. Hence, though an appropriate analysis will differ from case to case, when
undertaken in earnest to establish meaningful contact with a child who is otherwise
withheld from access by the custodial parent, a noncustodial parent’s legal attempts to
enforce custodial rights will usually be highly relevant evidence. See id. (analysis must
also include whether parent’s attempt to reaffirm parental duties after a period of absence
will be harmful to child); see also C.M.W., 603 A.2d at 622 (reversing termination of
parental rights where record contained clear and convincing evidence of parent’s
13 Though we approve of Hamilton’s analysis regarding its reversal of the termination of
parental rights decree on Subsection 2511(a)(1) grounds, we note the case, decided in
1988, is subject to the same shortcomings as Orwick and its progeny decided prior to the
1992 enactment of the provision in its current form, that is, at the time, a petitioner
established grounds by a showing parental abandonment for any six-month period in the
child’s life. See Bowman, 666 A.2d at 276 n.2 (opinion in support of reversal); Hamilton,
549 A.2d at 1294-96; Orwick, 347 A.2d 679 n.3, 680.
[J-30-2021] - 38
attempts to locate child through Domestic Relations Office and IRS after custodial parent
changed name and moved to unlisted address in another county without notice).
Importantly, we are also intensely cognizant of the duplicity enfranchised when a custodial
parent’s conduct both causes the need for legal intervention and faults the noncustodial
parent for failing to take legal action more swiftly, and we are loath to require a parent’s
prosecution of legal proceedings as a mechanism for preserving parental rights. See
D.J.Y., 408 A.2d at 1390 (where absence of communication results from deliberate
conduct of the opposing parent, failure to pursue legal action may not be used as a basis
for termination of parental rights); S.H., 383 A.2d at 533 (“mere showing that [noncustodial
parent] could conceivably have pursued legal action more promptly cannot justify
termination”).
In this case, two months prior to the April 15, 2019 filing of the termination petition,
Father attempted contact, Mother refused, and in response, on February 28, 2019, Father
initiated and actively pursued a complaint for custody, seeking a visitation arrangement
that could gradually increase to shared custody. Father’s perception this action was his
only remaining option to establish a relationship with C.M. is buttressed by the orphans’
court’s recognition of Mother’s settled resistance to a relationship between Father and
C.M. since his last visit in 2016. See Orphans’ Court Opinion, 9/26/2019, at 8, 9-10,
supra. Father attended the court-ordered mediation and conciliation proceedings,
suggesting he begin contact gradually, and complied with the court’s requirements in the
support case until Mother withdrew her complaint. Because no agreement was reached
through mediation or conciliation, Father had no contact with C.M. during that time. The
custody conciliator issued a report on April 3, 2019, and Father began arranging his
[J-30-2021] - 39
veterans’ benefits to secure reunification therapy with C.M. But, before the custody
matter and Father’s contact with C.M. could progress any further, appellants filed their
termination petition.
Thus, consistent with Hamilton, despite Father’s prior lengthy absence, his
proactive participation in the custody court’s measured requirements during the time the
case was active demonstrates affirmative performance of Father’s parental duties to the
maximum extent apparent at the time under these circumstances, as well as an interest
in and respect for the young child’s safety and emotional needs. The orphans’ court’s
finding Father “fail[ed] to take further action to have contact with his child” is not supported
by the record, and conflicts with the court’s additional finding the action he did take to
attempt contact — i.e., pursuing a legal proceeding to enforce his custodial rights — was
too late, which conclusion is not supported by the law. Orphan’s Court Opinion,
9/26/2019, at 10, 11; see D.J.Y., 408 A.2d at 1390; S.H., 383 A.2d at 533; Hamilton, 549
A.2d at 1295. These determinations were therefore erroneous. Consequently, because
the record demonstrates Father continuously exercised parental duties during the two
months preceding the filing of the petition, appellants did not meet their burden to
establish by clear and convincing evidence he failed or refused to perform parental duties,
or a settled purpose of relinquishment, for “a period of at least six months immediately
preceding the filing of the petition.” 23 Pa.C.S. §2511(a)(1); see C.J.A., 204 A.3d at 504-
05.
C. Additional Analytical Observations
Because we conclude the orphans’ court failed to consider the requisite statutory
period and the evidence during that period does not establish grounds for termination
[J-30-2021] - 40
according to the express requirements of Subsection 2511(a)(1), further review of
Father’s explanation for his absence,14 and consideration of C.M.’s needs and welfare
pursuant to Subsection 2511(b), are not dispositive and do not compel our result in this
case. However, given the rare occasion for this Court to engage in error review of such
an important matter, and as a consequence of our broad scope of review, we make the
following observations.
Unlike termination of parental rights cases stemming from dependency
proceedings — in which the trial court often has observed the parties through multiple
hearings over the course of several months or years, and which typically feature the
somewhat objective testimony of at least one caseworker whose professional duties
include, at a minimum, facilitating parents’ visits with the child and documenting parental
efforts — when a parent pursues the termination petition as in this case, the record may
be wholly comprised of the subjective testimony of one parent against another. Where
the interests at stake for each witness are so uniquely fraught, such testimony is
qualitatively different from the testimony provided in agency-initiated cases. Indeed, we
would not fathom approving the termination of parental rights where an orphans’ court
described an agency’s response to a noncustodial parent’s request for contact as it
describes Mother’s response in this case. Orphans’ Court Opinion, 9/26/2019, at 8
(“mother, through her rejection of his requests, contributed to his lack of contact with the
child”), 10 (“mother was not cooperative with father and did not make it easy for him to
14 We note that once the grounds are established under Subsection 2511(a)(1), even an
incarcerated parent has a duty to utilize those resources at his or her command to
continue a meaningful relationship with his or her child, or parental rights may be forfeited.
See S.P., 47 A.3d at 828; McCray, 331 A.2d at 655.
[J-30-2021] - 41
see this child”); see, e.g., In Interest of T.J.J.M., 190 A.3d 618, 631 (Pa. Super. 2018)
(reversing termination of parental rights where, inter alia, agency did not provide visits at
times parent could reasonably attend). Yet the clear and convincing evidentiary standard
remains the same. For this reason, specificity and corroboration are crucial to the
foundation of competent evidence.
As one critical illustration, the orphans’ court relied on the credible testimony of
Mother regarding her medical conditions, which it found were “debilitating and may prove
fatal,” to conclude the proposed adoption was suited to C.M.’s needs and welfare under
these “unusual circumstances.” Id. at 10; Orphans’ Court Opinion, 10/31/2019, at 3. Fully
crediting Mother’s testimony, as the orphans’ court did, establishes only that Mother’s
understanding of her illness and prognosis — that it might be fatal — was truthful, which
is certainly relevant for the court’s assessment of her motivations, but not competent to
establish the diagnoses and prognosis are accurate or correct, particularly in light of
further testimony indicating not much is known about scleroderma, its impact varies,
Mother resists researching it, and it currently provides little interference with her ability to
care for C.M.15 Appellants, who bear the burden of proof, offered no corroborating
evidence. Credibility is not a substitute for competency. Because we are left to speculate
about whether Mother’s understanding of her dire ultimate prognosis is in fact correct,
and if not, whether the proposed adoption plan remains reasonably calculated to C.M.’s
15 See Mother’s Testimony, N.T. 7/17/2019 at 36 (Question: “[H]ave you also spent some
time doing your own medical research on these kind of conditions?” Answer: “I try not
to.”), 37 (Scleroderma is “very rare” and not much is published about it; it “usually ends
up being fatal within a period of ten years[;]” “I’m aware that many people can be treated
for a number of years, but it varies between people.”); Grandfather’s Testimony, id. at 11
(“[Mother]’s doing very well right now. She does all of her duties, schooling, taking care
of [C.M.], day-to-day chores.”).
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needs and welfare, we observe there is significant room to foster hesitancy regarding the
orphans’ court’s conviction of Mother’s uncertain future in its conclusion this termination
was necessary.
In further contrast to dependency-related termination cases, which involve the
ever-looming threat of harm to a child returned to parents who have already demonstrated
an inability to provide proper basic care, there is no evidence or argument in this record
suggesting any harm might befall C.M. in the event Father’s custody case proceeds, or
even that her current home environment and routine would change in any way. Unlike a
child in foster care, C.M.’s consequence is not zero-sum; she remains with her known
family either way, but only one possible outcome to this litigation includes an opportunity
to establish a meaningful relationship with her biological father and siblings. See
Hamilton, 549 A.2d at 1296 (despite prospective second-parent adoption by custodial
parent’s spouse after father’s two-year absence, “nothing in the record . . . suggests that
termination of [father’s] relationship with his daughter is necessary . . . [o]n the contrary,
the record reveals [his] repeated petitions and assertions of visitation rights [with his
daughter] have led to the resurgence of their father-daughter relationship”). As Justice
Wecht insightfully observed in his concurring opinion in M.R.D., the custody court has
robust discretionary authority to enforce the restriction or allowance of contact with Father
in a manner curated to C.M.’s best interests. See M.R.D., 145 A.3d at 1134-35 (Wecht,
J., concurring). Custody proceedings additionally provide an opportunity to consider
objective criteria by which to measure future performance of Father’s parental duties
should he again disappear from C.M.’s world. Accordingly, we have significant difficulty
viewing the evidence in this case as competent to establish the weighty and
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consequential conclusion that, faced with the possibility of the loss of Mother at some
point in the future, C.M.’s need for permanency requires the termination of Father’s
parental rights and the severance of his branch of the family tree. As a further result of
our analysis, we strenuously encourage courts to view these life-altering cases through
an appropriate lens in light of the substance and objectivity of the evidence presented,
and always with an eye toward the individual child’s best interests. See T.S.M., 71 A.3d
at 269.
IV. Conclusion
For the foregoing reasons, we hold the evidence was insufficient to establish the
grounds for termination of Father’s parental rights pursuant to 23 Pa.C.S. §2511(a)(1).
Thus, though we disapprove of the Superior Court’s analysis, we reach the same result.
The order of the Superior Court is therefore affirmed: the decree terminating Father’s
parental rights is vacated. In addition, we vacate the decree terminating Mother’s rights
by voluntary relinquishment, and return the parties to the status quo ante.16 We remand
to the orphans’ court for proceedings consistent with this opinion.
16 Because we vacate the decree terminating Father’s rights, Grandparents’ petition for
the adoption of C.M. is not cognizable without Father’s consent. See 23 Pa.C.S. §§2701,
2702, 2711. As we have described herein, where the petitioner for an involuntary
termination of parental rights is not an agency, if a valid adoption is not anticipated, the
termination petition is not cognizable. See M.R.D., 145 A.3d at 1120, 1126, citing 23
Pa.C.S. §2512(b). We recognize the public policy of preventing the state’s creation of
orphans may be just as sound for invalidating a voluntary relinquishment under these
particular, aberrant circumstances where, without a valid adoption pending, the purpose
of Mother’s voluntary relinquishment is vitiated. See T.S.M., 71 A.3d at 268 (petition to
terminate parental rights filed by a biological parent is “only cognizable” when
accompanied by valid prospective adoption; “public policy behind this provision is to
prevent state-created orphans”) (internal citation and quotations omitted); see also
Petition for Voluntary Relinquishment of Parental Rights of [B.M.] at ¶7 (“Your petitioner
intends to relinquish her parental rights only in connection with the adoption of the child
by her parents, [D.M.] and [P.M.].”).
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Chief Justice Baer and Justices Saylor, Donohue and Mundy join this opinion.
Justice Todd files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.
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