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 the
APPEAL OF: B.M., MOTHER AND D.M. : Superior Court dated September 3,
AND P.M., MATERNAL GRANDPARENTS : 2020 at No. 3060 EDA 2019,
: reconsideration denied October 14,
: 2020, reversing the Decree dated
: September 27, 2019 in the Court of
: Common Pleas of Montgomery
: County, Orphans' Court, at No.
: 2019-A0053 and remanding.
:
: ARGUED: April 14, 2021
CONCURRING AND DISSENTING OPINION
JUSTICE TODD DECIDED: July 21, 2021
I join Parts I and II of the majority opinion, and join its discussion and application
of In re Adoption of M.R.D., 145 A.3d 1117 (Pa. 2016), in Part III.A. However, I dissent
with respect to the majority’s decision to address Father’s sufficiency claim and affirm on
that basis without additional briefing.
We granted review in this matter to address the Superior’s Court’s reliance on our
decision in M.R.D. and its related conclusion that the proposed adoption constituted
unlawful custody gamesmanship. I fully support the majority’s resolution of those two
issues. Before the Superior Court, however, Father also argued that, regardless of the
resolution of the above issues, the evidence was insufficient under 23 Pa.C.S. §
2511(a)(1) to support the termination of his parental rights. The Superior Court did not
address this sufficiency question. As a result, Mother, Grandparents, and C.M. did not
seek review of Father’s claim. Unsurprisingly, given that our order granting review was
explicitly focused on M.R.D. and the gamesmanship issues, Mother, Grandparents, and
C.M. did not brief the sufficiency question before us. While, as the majority notes, Father
did raise this issue in his appellee brief, Mother, Grandparents, and C.M. have been given
no notice that we might dispose of their appeal on this distinct basis. Moreover, in
justifying its decision to address the sufficiency issue, the majority seems to suggest that
an appellant has an obligation to respond in a reply brief to an issue we did not accept for
review raised in an appellee brief, because – you never know – we might sua sponte
decide to resolve an appeal in a fashion contrary to our own order granting review. See
Majority Opinion at 30 (“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.”).
I certainly agree with the majority that weighty interests are at stake in termination
proceedings and I share the majority’s concern that the resolution of a child’s legal status
should not be unnecessarily delayed. See Majority Opinion at 30. Nevertheless, those
same interests and concerns counsel in favor of notice to, and full briefing from, the
parties regarding the issues we may deem dispositive. Thus, I cannot support the
majority’s decision to resolve the sufficiency issue at this juncture, absent full briefing.
Notably, the case the majority cites in support of its decision to resolve the sufficiency
question supports my position, as, in that case, the issue had been fully briefed by the
parties. See R.R.M. v. Com., Dep't of Pub. Welfare, 786 A.2d 176, 185 (Pa. 2001) (“More
importantly, the arguments on the question have been well and candidly forwarded, on
all sides, so as to facilitate this Court's immediate resolution.”) cited in Majority Opinion at
30. Indeed, we indicated therein that sufficient briefing was more important than concerns
about the interests at stake or judicial economy. Id.[J-30-2021] [MO: Dougherty, J.] - 2
Accordingly, before addressing the sufficiency question, I would order expedited
briefing on the issue. Moreover, if they so chose, I would allow the parties to rest their
arguments in this regard on the briefs they filed in the Superior Court.
[J-30-2021] [MO: Dougherty, J.] - 3