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

[J-30-2021] [MO:Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: July 21, 2021
I concur in today’s mandate, which affirms the Superior Court’s decision to vacate
the decree terminating J.C. (“Father”)’s parental rights. However, I part ways with the
learned Majority’s analysis of In re Adoption of M.R.D., 145 A.3d 1117 (Pa. 2016). I
respectfully disagree with the Majority’s disapproval of our Superior Court’s reliance upon
M.R.D. I believe that the intermediate appellate court faithfully and properly applied the
principles that we expounded in that important and recent precedent.
I.
Father has had limited contact with C.M. (“Child”) from the time of Child’s birth in
2016. After making several unsuccessful attempts to arrange visitation with Child, Father
filed a custody complaint on February 28, 2019. Father and B.M. (“Mother”) participated
in mediation and conciliation, but were unable to reach an agreement on custody.
Consequently, the custody conciliator issued a report recommending that Father and
Child begin to attend reunification therapy.1 But no reunification occurred, as Mother and
D.M. (“Maternal Grandfather”) and P.M. (“Maternal Grandmother”) opted swiftly to file a
petition to terminate Father’s parental rights (“TPR”). And they were not done; they
followed up that April 15, 2019 TPR petition promptly by filing two additional pleadings:
Mother’s petition to voluntarily relinquish her own parental rights (April 26, 2019), and
Maternal Grandparents’ petition to adopt the Child as their own (April 30, 2019).
Sound familiar? Yes, indeed. We have seen this picture before, or something very
much like it. M.R.D. shows the template. In that case, following a years-long absence
from the children’s lives, the father attempted to contact the mother regarding the children.
145 A.3d at 1118. When the mother did not respond, the father filed a custody complaint.
The following month, the mother filed a petition for termination of parental rights. No
doubt mindful that our Adoption Act requires that the TPR petition be filed in contemplation
of an adoption, the mother proposed that the maternal grandfather would be the adoptive
father. Id. at 1119.2 Generally, a parent who consents to an adoption may retain parental
rights to a child only if that parent’s spouse adopts the child. 23 Pa.C.S. § 2903. As the
maternal grandfather was not the mother’s spouse, the mother could not comply with the
statutory requirements for an adoption, which, again, was a precondition to her ability to
retain her own parental rights while seeking to terminate the father’s.
1 Notes of Testimony (“N.T.”), 6/10/2019, at 75, 79-81.
2 See 23 Pa.C.S. § 2512(b) (when a parent petitions for termination of parental rights
of the other parent, the petition must contain “an averment that the petitioner will assume
custody of the child until such time as the child is adopted”). We have held that a
termination of parental rights petition filed by a parent is cognizable only if the parent
demonstrates “that an adoption of the child is anticipated.” M.R.D., 145 A.3d at 1120
(citing cases).
[J-30-2021] [MO: Dougherty, J.] - 2
The mother attempted to show cause for her noncompliance with the statutory
requirements,3 and her arguments found traction in the lower courts. But this Court was
not having it. We noted that parental consent to adoption and/or relinquishment of
parental rights “permits the child and the adoptive parent or parents to establish a new
parent-child relationship.”4 We emphasized that, “where no new parent-child relationship
is contemplated, the involuntary termination of parental rights is not permitted under the
Adoption Act.”5 We identified the purpose of the requirement of relinquishing or
terminating parental rights as “facilitat[ing] a new parent-child relationship” and
“protect[ing] the integrity and stability of the new family unit.”6
We proceeded in M.R.D. to disapprove of the maternal grandfather’s proposed
adoption. Our reasons were several. First, the mother and the maternal grandfather were
not part of an intact family unit, such as one established by stepparents or same-sex
partners, who “form a new parent-child relationship with the legal parent’s child” and who
thereby create a new family unit with the child. M.R.D., 145 A.3d at 1128. Second,
without relinquishment of both parents’ rights, there would be “a host of unique
complications.” Id. The maternal grandfather would become both father and grandfather;
the maternal grandmother would become both grandmother and stepmother; the mother
would become both mother and stepsister. If the mother later married, her spouse might
be precluded from adopting if the maternal grandfather declined to relinquish his rights.
3 See 23 Pa.C.S. § 2901 (“Unless the court for cause shown determines otherwise,
no decree of adoption shall be entered unless [a list of statutory requirements] have been
met.”).
4 M.R.D., 145 A.3d at 1120 (quoting In re B.E., 377 A.2d 153, 156 (Pa. 1977)).
5 Id. (quoting In re Adoption of L.J.B., 18 A.3d 1098, 1108 (Pa. 2011) (plurality))
(cleaned up).
6 M.R.D., 145 A.3d at 1128 (citing B.E. and Adoption of J.D.S., 763 A.2d 867 (Pa.
Super. 2000)).
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Third, this Court recognized the potential for “misuse of adoption proceedings . . . as a
means to involuntarily terminate the rights of unwanted parents, potentially allowing
grandparents, cousins, . . . and a litany of other individuals who have a close relationship
with a child to stand in as a prospective adoptive parents.” Id. at 1129. This potential for
gamesmanship was a driving factor in our decision to disallow the termination of the
father’s parental rights.
But our warning was not heeded, or not fully. The gamesmanship continues, as
the adoption proposed here shows. To be sure, the Majority quite correctly identifies a
distinction between M.R.D. and today’s case.7 In M.R.D., the mother and the grandfather
relied upon the cause shown exception because they could not meet the statutory
requirements. Here, in the wake of M.R.D., Mother and her parents deftly have added an
additional touch: “Mother voluntarily relinquished her parental rights,” and so Maternal
Grandparents facially claim compliance with the statutory requirements without need to
resort to the cause-shown exception.8 Relying on this fine-grained distinction, the
Majority concludes that M.R.D. does not apply and that the Superior Court erred in
considering whether a new family unit was being formed and whether this case belonged
in custody litigation rather than a TPR hearing.9 The Majority puts more weight upon this
artful distinction than it can bear.
M.R.D. was not the first case to cite the creation of a new family unit as the purpose
of the Adoption Act, nor the first case to incorporate that principle into its rationale. In
B.E., the mother sought to terminate the parental rights of the father, whom the mother
claimed had abandoned the child. B.E., 377 A.2d at 154. The mother was unmarried at
7 See Maj. Op. at 23-26.
8 Id. at 26.
9 Id. at 25-27.
[J-30-2021] [MO: Dougherty, J.] - 4
the time, and no adoption of the child was contemplated. The mother advanced two
principal arguments. First, she contended that the then-applicable statute concerning
who could file a TPR petition did not require that a parent attempting to terminate the
other parent’s rights file a report of intention to adopt. Second, the mother asserted that,
because a single person was permitted to adopt, she should be able to terminate the
father’s rights and operate as a single parent. Notably, while the version of the Adoption
Act then in force contained a provision similar to Section 2901,10 neither the mother nor
the Court invoked any cause-shown exception.
Rejecting both of the mother’s arguments, the B.E. Court highlighted the purpose
of the Adoption Act. Noting that the entire Act focuses upon adoptions, this Court held
that “the purpose of voluntary relinquishment and involuntary termination of parental
rights is evidenced by [the statutory section,] which provides that the effect of either
decree shall be to extinguish the power or the right of such parent to object to or receive
notice of [the] adoption proceeding.” Id. at 155 (cleaned up). The purpose of terminating
a parent’s rights is evidenced by the fact that the provisions governing such actions form
part of our Adoption Act. That circumstance makes “it clear that the Legislature intended
the petition for involuntary termination of parental rights to be available solely as an aid
to adoption.” Id. Accordingly, this Court further held that termination “is required before
the new parent-child relationship may be established.” Id. at 156. Notably, in B.E., the
mother already enjoyed a parent-child relationship, so termination of the father’s rights
was not necessary in order to create that relationship. Id.
10 1 P.S. § 501 (“Unless the court for cause shown determines otherwise, no decree
of adoption shall be entered unless the adoptee has resided with the petitioner for at least
six months prior thereto or, in lieu of such residence, the adoptee is at least 18 years of
age or is related by blood or marriage to the petitioner.”) (repealed 1981).
[J-30-2021] [MO: Dougherty, J.] - 5
This Court emphasized that the purpose of an involuntary TPR “is not to punish an
ineffective or negligent parent.” Id. Instead, the termination facilitates a non-consensual
adoption “when, by choice or neglect, a parent has failed to meet the continuing needs of
the child.” Id. A TPR petition begins the process that “permits the child and the adoptive
parent or parents to establish a new parent-child relationship through adoption.” Id. In
B.E., because the mother was not proposing to establish any new relationship with the
child, this Court refused to permit termination of the father’s parental rights.
In L.J.B., we confronted an unusual situation in which, during the pendency of an
appeal of the termination of the mother’s parental rights, the father and the stepmother
separated, which called into question the validity of the proposed adoption that formed
the basis of the TPR. L.J.B., 18 A.3d at 1106. In a plurality decision, the Opinion
Announcing the Judgment of the Court (“OAJC”) remanded the case for a hearing as to
whether the adoption was still contemplated, noting that a TPR petition filed by one parent
against the other is only cognizable when a stepparent adoption is intended. The reason
for this requirement, the OAJC explained, is that the TPR permits a new parent-child
relationship between the child and the stepparent and protects “the integrity and stability
of the new family unit.” Id. at 1108 (quoting J.D.S., 763 A.2d at 871). “[W]here ‘no new
parent-child relationship is contemplated,’ the ‘involuntary termination of . . . parental
rights . . . is not permitted.’” Id. (quoting B.E., 377 A.2d at 156). Because the Court could
no longer be assured that an adoption — and therefore, a new parent-child relationship
— was contemplated, the OAJC could not affirm or reverse the termination of the mother’s
parental rights without additional fact-finding.
In both B.E. and L.J.B., without consideration of the cause-shown exception, this
Court looked to the purpose of the Adoption Act as we considered the validity of the
[J-30-2021] [MO: Dougherty, J.] - 6
proposed adoption, and, necessarily, the validity of the underlying TPR petition.11 So
while M.R.D. focused upon the cause-shown exception when explicating the purpose of
the Act, our case law has not confined consideration of the Adoption Act’s purpose to
cause-shown cases. In limiting consideration of the purpose of the Act solely to such
circumstances, the Majority construes M.R.D. too narrowly.
In the case that we confront today, it is salient that no new family unit and no new
parent-child relationship would be formed by terminating Father’s parental rights or by
Maternal Grandparents’ proposed adoption of Child. Maternal Grandfather admitted that
he anticipated that Maternal Grandparents and Mother would play the same caregiving
roles after the adoption as they did previously, save for any scenario in which Mother
would become physically unable to care for Child.12 There are no plans for any new living
arrangements.13 Mother testified that she cared for Child on a daily basis and that she
would continue to do so.14 Mother confirmed that there would be no change in her daily
interaction with Child regardless of whether or not the TPR was granted.15 From the
testimony at the hearing, it was clear that nothing whatsoever in Child’s life was going to
change with this proposed adoption. Mother was still going to act as Child’s mother.
11 See also In re T.R., 465 A.2d 642, 644 n.10 (Pa. 1983) (directing that, upon
remand, in addition to considering a TPR petition under the correct standard of proof, the
trial court also “should consider, and not merely accept on its face, appellee’s and his
spouse’s Declaration of Intent to Adopt, so that the issue of whether they genuinely seek
the termination ‘solely as an aid to adoption’ to thereby establish a new ‘parent-
child relationship,’ the ‘singular concern’ of the Adoption Act, may properly be
determined.”) (quoting B.E., 377 A.2d at 155-56).
12 N.T., 7/17/2019, at 28-29, 31-32.
13 Id. at 31.
14 Id. at 73-74.
15 Id. at 87, 89.
[J-30-2021] [MO: Dougherty, J.] - 7
Maternal Grandparents were still going to assist with child care. No new relationship
would develop. There would be no new family unit. As in B.E., the termination of parental
rights would not foster any new relationship for Child. None of the purposes of the
Adoption Act would be served by granting this TPR. The termination of Father’s parental
rights here is not permitted by the Act.
M.R.D. represented this Court’s full-throated condemnation of the distortion, abuse
and gaming of the statutory TPR process as a litigation scheme to circumvent and avoid
child custody proceedings.16 After our pronouncements there, I had thought it clear that
TPRs should not be weaponized as implements in order to lever advantage in custody,
to stiff-arm a neglectful father or mother, or to punish an inattentive parent who belatedly
seeks to reconnect with a child. In dictum, the M.R.D. majority hypothesized that, had
the mother in that case relinquished her parental rights, the grandfather might be
permitted to adopt the children. M.R.D., 145 A.3d at 1126. Mother and her parents
appear to have taken this dictum as a hint or practice pointer, seizing upon it now as a
roadmap to allow avoidance of M.R.D.’s holding. Unlike my esteemed colleagues in the
Majority, I would not approve such artful but disingenuous litigation strategies, which seek
creatively to switch the frame in order to beat back custody efforts.
In both M.R.D. and today’s case, the non-custodial parent had been absent from
the children’s lives for an extended period of time. Then, that non-custodial parent
attempted to reestablish contact, first through requests (and attempted requests) to the
custodial parent, and then through the trial court after being rebuffed by the custodial
parent. Confronted with the non-custodial parent’s custody complaint, the custodial
parent refused to proceed through the custody process that our law provides, resorting
16 See M.R.D., 145 A.3d at 1134 (Wecht, J., concurring) (“To countenance [such]
litigation tactics would be to countenance corruption of our adoption laws.”).
[J-30-2021] [MO: Dougherty, J.] - 8
instead to the nuclear option: the draconian petition to terminate the non-custodial
parent’s rights. While I welcome (and join) the Majority’s condemnation of the use of
TPRs in custody proceedings,17 I do not share in its disapproval of the Superior Court’s
invocation of M.R.D. to inhibit precisely such inappropriate gamesmanship in this case.
II.
Father detailed his attempts to contact Mother and Child. When Father moved
back to Pennsylvania in July 2016, he tried to call Mother, but she did not answer his
call.18 Father also tried texting, but his “number was blocked from being accepted to her
phone.”19 Father went to Mother’s residence, but Mother told him that he was not
welcome there.20 “[A]fter some contact or discussion with Mother,” Mother consented to
Father’s visitation with Child from August through October 2016.21 Mother then
terminated these visits, whereupon Father again tried to call and text Mother, albeit with
no success.22 Father also tried to arrange contact through a third party.23 In December
2016, when Father was able to contact Mother on his work phone (which Mother had not
17 See Maj. Op. at 29 n.10. Additionally, I agree with the Majority’s observation that
termination proceedings instigated by one parent against another are different from those
initiated by an agency, and that the former merit particular attention from the trial court in
order to ensure that the burden of clear and convincing evidence is satisfied. See Maj.
Op. at 40-41.
18 N.T., 6/10/2019, at 55-56.
19 Id. at 56.
20 Id. at 57.
21 Id. at 58-59.
22 Id. at 59.
23 Id. at 59-60.
[J-30-2021] [MO: Dougherty, J.] - 9
yet blocked), Mother stated that Child was not his daughter.24 Thereafter, Father’s calls
to Mother went unanswered.25
Father testified that, when his visitation was halted, he did not try to go to Mother’s
house because he “didn’t want any charges pressed on [him].”26 Father stated that a
police officer called him, warned him to stop attempting to contact Mother, and threatened
to file harassment charges against him.27 Father’s aunt made contact with Mother and
received photos of Child.28 Father saw photos of Child through his aunt’s efforts.29
Father’s older children have met Child and know her as a sister.
Father admitted that an eleven-month gap ensued before he again attempted to
contact Mother.30 On November 22, 2017, Father called Mother seven times. First,
Mother did not answer; then, she hung up on Father; then, she repeated that Father was
not Child’s father; and, then, again, she hung up on Father.31 When Father requested
24 Id. at 61.
25 Id.
26 Id. at 60.
27 Id. at 34, 103, 117. The trial court questioned the credibility of this statement
because Father “provided no specifics and no corroboration of this allegation.” Trial Court
Opinion (“T.C.O.”), 9/26/2019, at 5.
28 N.T., 6/10/2019, at 39-42.
29 Id. at 71-72.
30 Id. at 62.
31 Id. at 64-65. The trial court found that Father’s testimony about Mother’s denials
of his paternity lacked credibility. The trial court opined that Mother meant that Father
was not acting like a father and that Father did not truly understand Mother to be
questioning his paternity. T.C.O., 9/26/2019, at 6.
[J-30-2021] [MO: Dougherty, J.] - 10
visitation, Mother again told him that he was not the father and that he could not see
Child.32 Father’s wife corroborated Father’s accounts of these calls.33
Father provided an explanation for some of the temporal gap during which he did
not attempt to contact Mother. First, Father was incarcerated between December 2017
and February 2018.34 After Father was released, he went to the Veterans Affairs (“VA”)
for treatment for PTSD and then resided in transitional housing through the VA until
October 2018.35 Minors were not permitted in that transitional housing.36
In February 2019, Father again attempted to contact Child through Mother. Father
told Mother that he would file for custody if she would not agree to visitation.37 Mother
responded that she would then file for child support.38 Father filed for custody because
he “had no other option.”39 When Mother filed for support, she requested paternity testing.
That testing confirmed that Father was Child’s biological father.40
Mother denied that she blocked Father’s calls or texts.41 She also denied that she
told Father that he was not Child’s father.42 Mother presented text messages that
32 N.T., 6/10/2019, at 66-67.
33 N.T., 7/17/2019, at 151-53.
34 Id. at 112.
35 Id. at 113.
36 Id. at 113-14.
37 N.T., 6/10/2019, at 71.
38 Id. at 72.
39 N.T., 7/17/2019, at 122.
40 N.T., 6/10/2019, at 83, 86.
41 N.T., 7/17/2019, at 41-42.
42 Id. at 45.
[J-30-2021] [MO: Dougherty, J.] - 11
included her saying, “You are not a father and you never will be. You’re a sperm donor.”43
While Mother did not list Father on Child’s birth certificate,44 she claimed that she asked
for a paternity test only to prevent Father from denying paternity.45
Mother and Maternal Grandfather testified that they sought the adoption in order
to prepare in the event that Mother’s medical conditions worsened.46 Maternal
Grandfather asserted that he sought to adopt Child because he “would have no faith in
[Father] after the first three years of [Child’s] life.”47 Mother stated that she agreed to the
adoption because she “would have no trust in [Father] raising my child.”48 She also
admitted that the TPR was not filed prior to 2019, despite Father’s lack of involvement in
Child’s life in prior years, “because we were not going to court back [then].” 49
The record before us in this case paints a not uncommon picture of a parent who
was uninvolved in his or her child’s life due to personal difficulties, obstacles erected by
the other parent, and a failure to follow through with unswerving consistency. Once
Father made serious, albeit belated, progress toward reuniting with Child, Mother decided
simply to terminate his parental rights. Why not? It is undeniable (and Mother did not
43 Id. at 50.
44 Id. at 71-72.
45 Id. at 52.
46 Id. at 13-14, 38. The trial court found credible Mother’s and Maternal Grandfather’s
testimony regarding their rationale for the adoption as related to Mother’s medical
conditions. T.C.O., 9/26/2019, at 11. No expert testimony concerning these conditions
was presented.
47 N.T., 7/17/2019, at 14.
48 Id. at 68.
49 Id. at 84. See also N.T., 7/17/2019, at 85 (“Q: So when [Father] uses the court in
2019 to say I want to see my daughter, that’s when you decided to file the [TPR] petition,
is that correct? A: Correct.”).
[J-30-2021] [MO: Dougherty, J.] - 12
attempt to deny) that this TPR was motivated by Father’s custody petition. That
motivation should not be ignored or discounted, and our Superior Court should not be
faulted for considering that motivation in its decision. This was, and this is, a case about
child custody. It should never have been in Orphans’ Court. It should never have been
a TPR petition, much less a TPR decree.
III.
In 2019, the year in which this TPR was filed, 1,182 contested TPRs were
adjudicated in Pennsylvania.50 In Montgomery County alone, in 2019, where and when
this petition was filed, 347 relinquishment and/or termination petitions were filed, and 279
were decided. Our Orphans’ Courts are busy enough with termination cases. Many of
these cases are wrenching and difficult. We should not lightly add to this burden cases
that are properly custody disputes at root. Our custody courts have broad and robust
discretion. They are well-equipped to craft custody arrangements that protect the
children’s best interests and consider fully the consequences of parental inattentiveness
and dereliction.51
The termination of parental rights is a draconian measure, sometimes labeled “the
equivalent of a death sentence” for the parent-child relationship.52 The TPR process does
not aim to punish, or to exact retribution or vengeance, or to slap down a suboptimal
50 All statistics appear in the 2019 Caseload Statistics of the Unified Judicial System
of Pennsylvania, available at https://www.pacourts.us/Storage/media/pdfs/20210205/
174304-caseloadstatisticsreport2019.pdf.
51 See M.R.D., 145 A.3d at 1135 (Wecht, J. concurring) (“[T]rial courts all across this
Commonwealth[ have] robust discretionary authority to limit and even completely curtail
[a parent’s] custody rights under the custody statutes without resort to the draconian
remedy of termination of parental rights under the adoption laws.”).
52 In Int. of Lilley, 719 A.2d 327, 329 (Pa. Super. 1998). See In re Bowman, 666 A.2d
274, 280 (Pa. 1995) (Opinion in Support of Reversal) (calling termination of parental rights
“one of the most serious and severe steps a court can take”).
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parent.53 “It is emphatically not a tool to be deployed in custody disputes.”54 Rather, the
extreme remedy of termination is designed to allow and to foster the adoption of a child
when (but only when) proper grounds exist and when the creation of a new family unit
and a new parent-child relationship is in the child’s best interests. By this late date, it
should be crystal clear that Pennsylvania’s courts should not countenance TPRs sought
simply to gain and lock down full custody of a child to the permanent exclusion of another
parent. As the OAJC noted in L.J.B., “the creation of parental termination absent
stepparent adoption would provide parents with a new, and in our view dangerous, tactic
in heated custody disputes; indeed, one can imagine routine cross-petitions for
termination as part of custody battles.”55 The M.R.D. Court similarly warned that granting
the TPR in that case could “open the door for misuse of adoption proceedings by spiteful
parents as a means to involuntarily terminate the rights of unwanted parents, potentially
allowing grandparents, cousins, pastors, coaches, and a litany of other individuals who
have a close relationship with a child to stand in as prospective adoptive parents so that
termination may be achieved.”56 It seems that the dystopian future against which we
53 See generally B.E., 377 A.2d at 156.
54 M.R.D., 145 A.3d at 1133-34 (Wecht, J. concurring).
55 L.J.B., 18 A.3d at 1110.
56 M.R.D., 145 A.3d at 1129. Concurring in M.R.D., Chief Justice Baer also noted
that, in this type of situation, the TPR more often benefits the parent rather than the child:
Terminating an uninvolved parent’s rights does not remedy any harm
caused by that parent’s absence in the child’s life. The only benefit of
terminating a non-involved parent’s rights without substituting a new parent
is arguably to the involved parent: it removes the involved parent’s fear that
the non-involved parent will have a change of heart and want a relationship
with the child (which may, in the long term, benefit the child); it removes the
risk to the involved parent of having to litigate child custody; it dispels the
involved parent’s feeling that his or her efforts are underappreciated in the
eyes of the law, etc.
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warned has now arrived. Today, alas, that grim prospect receives a surprisingly
sympathetic hearing and welcome in this Court.57
The “dangerous . . . tactic” foreseen by L.J.B. is precisely what Mother and her
parents pursued in today’s case. As in M.R.D., no one considered seeking termination
of Father’s parental rights here until he filed a complaint in custody. Instead of pursuing
relief in custody court, Mother turned directly to the nuclear button, seeking the most
dramatic remedy possible: termination of Father’s parental rights. Instead of trusting the
custody court to credit her arguments, evidence, and legal position in order to limit or
even bar entirely Father’s involvement with Child, Mother decided that Father should not
get the chance even to seek to demonstrate over time that his involvement (however
slight) with Child might be in Child’s best interest. The Superior Court did not err in
considering these factors. Indeed, and especially given this Court’s directions in L.J.B.
and M.R.D., the Superior Court did precisely what it should have done.
IV.
The Majority will no doubt fault me, as it did the Superior Court, for displacing the
trial court’s fact-finding and credibility determinations.58 But the Majority itself dives quite
deeply into the record when it proceeds to conduct its own sufficiency of the evidence
review. Like the Majority, I have turned to the record to examine and determine whether
competent evidence supported the trial court’s conclusions, as our standard of review
145 A.3d at 1132.
57 In M.R.D., I noted that the Superior Court “strikingly ignore[d] the fact that the
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.” M.R.D., 145 A.3d at
1134 (Wecht, J. concurring). The trial court made the same mistake here.
58 Maj. Op. at 27-28.
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requires.59 The Majority takes the Superior Court to task for disregarding the trial court’s
specific credibility determinations. Yet, at the same time, as it reviews the sufficiency of
the evidence, the Majority itself appears at times to liberate itself as needed from the
facts, testimony and credibility findings upon which the trial court chose to rely when that
court was called upon to defend its ruling. It seems to me a surpassingly fine distinction
indeed to deem a reviewing court bound when a trial court decides that it finds specific
testimony credible or not, but not bound when a trial court relies upon testimony or a fact
without specifically stating that the testimony is credible or that the fact is found. For
present purposes, one example will suffice. While noting the trial court’s error in failing
to emphasize the events of the six months prior to the filing of the TPR petition, the
Majority nonetheless places great weight on Father’s attempt to contact Mother in
February 2019 and his filing for custody and participating in the custody process.60 While
I quite agree that these latter facts have great weight, we must recognize that the trial
court paid them scant attention.61 My point here is that the Majority’s decisions on what
to accept and what to reject in the trial court’s determinations appear somewhat selective.
Ultimately, I do not agree with the Majority’s view that the Superior Court
disregarded the trial court’s credibility determinations and fact-finding. Instead, it appears
that the intermediate panel used the credited testimony to reach the legal conclusion (a
distinctly appellate prerogative of course) that “Maternal Grandparents’ adoption lack[ed]
59 In re Adoption of S.P., 47 A.3d 817, 821 (Pa. 2012).
60 Maj. Op. at 39-40.
61 T.C.O., 9/26/2019, at 11 (“Whether or not [Father] has been diligent in his efforts
beginning in February of 2019, he has already failed to exercise such diligence . . . .”).
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integrity” and could not support a TPR petition.62 This is not to say that I think the Majority
errs in the conclusions it reaches upon reviewing the record when it turns, ultimately, to
Father’s sufficiency challenge. Rather, it is to say that I agree with the Superior Court
that the sufficiency challenge need not be reached in this case. Perhaps at some level
there is little ultimate distinction between the two exercises, but I perceive some tension
between the Majority’s criticism of the Superior Court’s scrutiny of the record and the
Majority’s own fine-grained analysis of that record.
V.
Inasmuch as the Majority dives into the record, I too have taken the plunge. So
immersed, I wish to note more than a few troubling aspects in the testimony adduced at
the TPR hearing. First, the lack of expert testimony regarding Mother’s condition and
diagnoses of lupus and scleroderma is glaring. No, it is beyond glaring. This is especially
so given the emphasis that the trial court placed upon lay testimony purporting to opine
on these medical matters. The trial court rejected Father’s argument that the TPR petition
was filed because he had sought custody rights. Instead, the trial court discounted the
timing of the various filings, and chose to credit Mother’s and Maternal Grandfather’s
claims about Mother’s medical conditions, which assertedly justified their desires for
stability for Child and in turn guided their motivations for the TPR. Based upon Mother’s
62 In re Adoption of C.M., 2020 WL 5269235 at *6 (Pa. Super. Sept. 3, 2020). The
Superior Court acknowledged the trial court’s credibility determinations as follows:
At the outset, we highlight that the orphans’ court made a credibility
determination in favor of Mother and the maternal grandfather, which we do
not disturb. The motivation for the adoption is obvious from the credible
testimony that they sought to terminate Father's parental rights in order to
ensure that [Child] remains with Maternal Grandparents in the event that
Mother’s health deteriorates.
C.M., 2020 WL 5269235 at *5 (citation omitted).
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lay medical diagnoses, the trial court found that the termination of parental rights and the
adoption were in Child’s best interests.63 Maternal Grandfather testified that Mother, at
the time of the hearing, was attending nursing school and working at a daycare facility.64
Maternal Grandfather testified that, despite Mother’s diagnoses, she kept up with
schoolwork, employment, and child care.65 Maternal Grandfather stated that he
understood Mother’s condition “can be debilitating, fatal in the end results of the
disease.”66 Yet, Mother has not had any problems caring for Child.67 Mother testified to
her understanding that, while lupus is not fatal, scleroderma usually is fatal within ten
years.68 Mother admitted that she had not done much research into the diseases.69 The
Majority states that this testimony establishes Mother’s and Maternal Grandfather’s lay
understanding of Mother’s medical conditions.70 Absent relevant objections, I suppose it
does, so far as that goes. But without expert testimony, the trial court could not be
confident that this testimony accurately characterized Mother’s prognosis. As the Majority
frankly concedes, “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 [Child’s] needs and welfare. . . .”71 To say the
63 T.C.O., 10/31/2019, at 3.
64 N.T., 7/17/2019, at 9.
65 Id. at 11.
66 Id. at 13.
67 Id. at 27.
68 Id. at 37.
69 Id. at 36-37.
70 Maj. Op. at 42.
71 Id.
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least, trial courts should be deeply wary of placing such overwhelming weight on
purportedly medical testimony offered by laypersons, particularly when termination of
parental rights relies in part on such testimony.
Second, there was no testimony whatsoever from Maternal Grandmother, who
lives with Child and would become Child’s parent if this proposed adoption were granted.
The trial court indicated that it expected to hear from Maternal Grandmother at a separate
adoption hearing.72 It is troubling that Maternal Grandmother had no involvement in the
TPR proceeding whatsoever, notwithstanding the fact that the trial court anticipated her
assumption of parental duties.73 The trial court was left to accept (and, apparently, it did
accept) second-hand testimony concerning Maternal Grandmother’s putative intentions.
It would certainly be far too late for Father (and Child) if, well after Father’s rights were
terminated, the trial court, upon hearing from Maternal Grandmother for the first time,
discovered something amiss that cast doubt upon its termination decree or the planned
adoption.
VI.
Finally, my review of this record compels me to offer a word about standing, as it
suggests yet an additional deficiency in the troubled history of this case. Father
challenged Maternal Grandparents’ standing for the first time in his concise statement of
errors complained of on appeal filed pursuant to Pa.R.A.P. 1925(b). The trial court
72 T.C.O., 10/31/2019, at 4.
73 See, e.g., In re E.M.I., 57 A.3d 1278, 1289-90 (Pa. Super. 2012) (denying the
mother’s petition to terminate the father’s parental rights to facilitate the child’s adoption
by the mother’s domestic partner and noting that “the absence of [the domestic partner’s]
testimony limited the court’s ability to evaluate her relationship with [the child] or the
genuineness of [the partner’s] intention to adopt [the child]” and “[t]he court properly
refused to guess [the partner’s] intentions or accept evidence of her intentions second-
hand”).
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correctly found that this issue was waived as untimely raised.74 In Pennsylvania, a
challenge to standing is waivable.75 Thus, the trial court was not obliged to raise the issue
of standing sua sponte in the absence of any timely challenge from a party.
In their TPR petition, Maternal Grandparents noted that they lived with Child for
more than two years. Presumably, this formed the basis for their putative standing to file
the TPR petition, although they cite no statutory provision.76 Perhaps Maternal
Grandparents intended to rely upon 23 Pa.C.S. § 2512(a)(3), which provides that any
“individual having custody or standing in loco parentis to the child” may file a TPR petition.
If so, they failed to say so. The trial court opined afterward simply that Maternal
Grandparents “stand in loco parentis to [Child] and have standing to file a [TPR]
petition.”77
There may have been a colorable argument as to whether Maternal Grandparents
stood in loco parentis (or not). “[T]he legal status of in loco parentis refers to a person
who puts himself or herself in the situation of a lawful parent by assuming the obligations
incident to the parental relationship without going through the formality of a legal
adoption.”78 This Court also has recognized that cohabitation with the subject child does
not necessarily confer in loco parentis standing.79 Courts have held that in loco parentis
status is not conferred when a grandparent’s assumption of parental responsibilities is
74 T.C.O., 10/31/2019, at 2.
75 In re Condemnation by Urb. Redev. Auth. of Pittsburgh, 913 A.2d 178, 181 n.6
(Pa. 2006).
76 Petition for Involuntary Termination of Parental Rights, 4/15/2019, at 1.
77 T.C.O., 10/31/2019, at 3.
78 In re B.L.J., Jr., 938 A.2d 1068, 1073 (Pa. Super. 2007) (cleaned up).
79 See C.G. v. J.H., 193 A.3d 891 (Pa. 2018).
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“more consistent with [the grandparent] assisting [the parent and the child] in a time of
need than with [the grandparent’s] informal adoption.”80
Here, Maternal Grandfather testified that he and his wife took care of Child while
Mother attended school in the evenings.81 He characterized the relationship as “more
than grandparents.”82 He detailed that he and his wife spend time with Child daily and
that they share a close bond.83 However, there also was testimony that Mother provided
daily care for Child. Whether or not Maternal Grandparents were acting in loco parentis
or were, instead, frequent caretakers assisting Mother with Child’s care was never
explored because Father did not raise the issue of standing when he had the opportunity
to do so.
If the issue had been raised timely, and if the trial court still had determined that
Maternal Grandparents had standing, any error in that finding would likely have been
harmless. Mother joined the TPR petition, and she had standing as a parent to file against
Father. 23 Pa.C.S. § 2512(a)(1). Here, Father did not challenge standing until he brought
his appeal. Thus, the trial court was correct to find waiver. I address the issue only to
remind practitioners that standing is a contestable issue, and that the failure to raise it in
a timely fashion results in waiver.
* * * *
80 D.G. v. D.B., 91 A.3d 706, 711 (Pa. Super. 2014). See Argenio v. Fenton, 703
A.2d 1042, 1044 (Pa. Super. 1997) (concluding that the grandmother did not have in loco
parentis status because the grandmother acted as no more than a caretaker, in effect, a
babysitter for the child, albeit a frequent caretaker, and that the daughter's actions in
leaving her child with the grandmother “were appropriate and were consistent with that
which would be expected of a young, unwed mother who was trying to obtain an
education, be productive, and continue to develop socially”).
81 N.T., 7/17/2019, at 14.
82 Id. at 21.
83 Id. at 21-22.
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I concur in the Majority’s judgment that Father’s parental rights should not have
been terminated. However, relying upon M.R.D., I would have reached that conclusion
because the TPR petition here served as a pretext to remove this case from the custody
court, which is the forum in which it belonged. As in M.R.D., the TPR petitioners here
engaged in impermissible gamesmanship. The Superior Court was right to flash a red
light. The proposed adoption would not further the goals of the Adoption Act. No new
parent-child relationship or new family unit would be created. For these reasons, like the
Superior Court, I would not reach Father’s sufficiency challenge. The TPR petition here
failed at the very threshold. I do note, however, that, were I compelled to reach that
sufficiency challenge, my own review of this record would incline me to agree with the
Majority that the evidence here was not sufficient to support termination of Father’s
parental rights.
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