In Re: Adopt. of M.R.D. and T.M.D. Appeal of: M.C. , 2015 Pa. Super. 255 ( 2015 )

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2015 PA Super 255IN RE: ADOPTION OF: M.R.D. AND : IN THE SUPERIOR COURT OF
T.M.D., MINOR CHILDREN : PENNSYLVANIA
:
:
APPEAL OF: M.C., NATURAL FATHER : No. 1728 MDA 2013
Appeal from the Decree August 19, 2013
In the Court of Common Pleas of Lycoming County
Orphans’ Court at No(s): 6365
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.
OPINION BY GANTMAN, P.J.: FILED DECEMBER 08, 2015
Appellant, M.C. (“Father”) appeals from the decree entered in the
Lycoming County Orphans’ court, which granted the petition of M.D.
(“Mother”) and Maternal Grandfather to terminate Father’s parental rights to
M.R.D. and T.M.D. (“Children”). Father asks us to determine whether the
Orphans’ court erred when it granted the termination petition because
termination of his parental rights does not serve the best interests of
Children. We hold the Orphans’ court correctly terminated Father’s parental
rights to Children, under the facts and circumstances of this case; Maternal
Grandfather qualified as a “good cause” candidate to adopt Children and his
proposed adoption of Children is both legally feasible and realistically
foreseeable; thus, termination of Father’s parental rights serves the best
interests of Children. Accordingly, we affirm.
To relate the relevant facts and procedural history of this case, we
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begin with the Orphans’ court findings of fact set forth in its opinion as
follows:
Finding of Facts
1. [Children] were born [in October 2004], in Lycoming
County, Pennsylvania. [Children] currently reside with
their [M]other [in] Lycoming County, Pennsylvania.
[C]hildren’s mother is [M.D.], who was born [in May
1979]. Mother is currently unmarried. [C]hildren’s
[M]aternal [G]randfather…currently resides [in] South
Williamsport, Lycoming County, Pennsylvania. Maternal
[G]randfather is currently married to…maternal
grandmother.
2. [Children’s] father is [M.C.]. Father resides [in]
Pierre, South Dakota. Mother and Father met while Mother
was teaching in South Dakota in 2002.
3. Mother and Father lived together in South Dakota until
Mother returned to Pennsylvania in October 2003.
4. Father moved to Pennsylvania briefly in January 2004,
but returned to South Dakota.
5. After Father left Pennsylvania, Mother learned of her
pregnancy. Mother informed Father of her pregnancy and
Mother and Father spoke infrequently throughout the
pregnancy.
6. Mother moved into the home of [M]aternal
[G]randfather during her pregnancy.
7. The majority of Father’s family resides in South
Dakota.
8. The majority of Mother’s family resides in
Pennsylvania.
9. In October of 2004, Father traveled to Pennsylvania
following [C]hildren’s birth for a few days.
10. Father is not on [C]hildren’s birth certificate.
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11. In December of 2004, Father traveled to Pennsylvania
to visit [C]hildren. Father stayed in Maternal Grandfather’s
home.
12. In January of 2006, Father traveled to Pennsylvania
for a visit. Mother planned special experiences between
Father and [C]hildren such as their first haircuts, a
professional photo session and shopping trips.
13. In February 2006, Mother discussed with Father
[Mother] and [C]hildren traveling to South Dakota to meet
[C]hildren’s extended family. Father was not supportive.
14. In approximately August of 2006, Mother moved from
[M]aternal [G]randfather’s home to…Jersey Shore,
Pennsylvania. The home was owned by Maternal
Grandfather and had previously been a rental property.
Maternal Grandfather charged Mother no rent for the
home.
15. Father was aware of the address [change] as
evidenced by an envelope sent by Father to [Jersey Shore,
Pennsylvania] in December of 2006. The envelope was
entered into evidence.
16. In August of 2006, Mother began working at
Williamsport Area School District.
17. The parties’ communication became extremely
infrequent.
18. Mother received the last written correspondence sent
by Father in January of 2007.
19. In the Spring of 2007, Father contacted Mother.
Mother felt Father was drunk during this phone call.
20. Mother changed her phone number to an unlisted
number following the Spring 2007 phone call. Mother’s
address remained unchanged until 2010. Maternal
Grandfather’s address remained the same from the time of
[C]hildren’s birth until the hearing on August 13, 2013.
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21. At the time of the hearing on the Petition for
Termination of parental rights, Father had not seen
[Children] since January 2006.
22. At the time of the hearing on the Petition for
Termination of parental rights, Father had not sent
[Children] written correspondence since January 2007.
23. Father did not send cards or gifts to [C]hildren
because he was unsure if Mother’s address had changed.
24. Father contacted an attorney in 2009 to discuss
custody.
25. Father knows how to contact Mother’s parents in
Pennsylvania. Father had no contact with Mother’s
parents.
26. Father has provided little support for [C]hildren during
the first few years of their lives. Father sent Mother
money on one occasion and bought gifts on his January
2006 visit. Father had provided no further support.
27. Father has sent little more correspondence than six
greeting cards to [C]hildren throughout their lives.
28. In…November of 2012, Father called and left a
voicemail at Mother’s place of employment, Williamsport
Area School District. Mother did not return Father’s phone
call.
29. Father filed for custody in December 2012, Mother
received Notice of proceeding in January 2013.
30. Mother [and Maternal Grandfather] filed [a] Petition
for Termination of [Father’s] Parental Rights on [January
29, 2013 and an amended petition on February 28, 2013].
31. [Children] did not learn of the existence of their
biological father until the summer of 2013.
32. Mother informed [C]hildren of the existence of their
biological father due to the pending termination hearing
and the fact that [C]hildren would be speaking with the
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Guardian Ad Litem regarding [F]ather.
33. When Mother, or the Guardian Ad Litem, discussed
Father with the children, they listed either “Pa Pa,”
Maternal Grandfather[,] or “God” as their father.
34. [C]hildren have no bond with Father.
35. Father’s intention is to become more involved with
[C]hildren and form a relationship with [C]hildren.
(Orphans’ Court Opinion, filed August 19, 2013, at 5-9). The Orphans’ court
held a termination hearing on August 13, 2013. As a result of the hearing
and arguments presented, the Orphans’ court concluded:
[T]his Court must first address and evaluate the proposed
adoption of the children by Maternal Grandfather while
Mother retains her parental rights. Mother has
demonstrated good cause for an adoption by Maternal
Grandfather in this instance.
Mother and Maternal Grandfather have shared parental
duties of the minor children since their birth [in 2004].
Immediately after [M.R.D.’s] birth, he was transported to a
separate hospital from Mother and [[T.M.D.]. Maternal
Grandfather traveled to and from each hospital to see the
boys. After leaving the hospital the boys and Mother
returned to [Maternal] Grandfather’s home where he took
on a regular role in diapering and feeding. Grandfather
regularly held [T.M.D.] to help him fall asleep. Maternal
Grandfather got up with [C]hildren in the night.
[Children] lived at Maternal Grandfather’s home until they
were 22 months old. Thereafter, Maternal Grandfather
provided housing for the boys while they lived in Jersey
Shore. Maternal Grandfather continues to provide
significantly for the boys through groceries and other
assistance. Maternal Grandfather has requested certain
work hours around his need to be available to pick the
boys up after school. [Maternal] Grandfather has picked
the boys up regularly from daycare, preschool,
kindergarten and first grade. [Maternal] Grandfather
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knows the boys’ interests and participates in their
activities. This involvement in the boys’ lives has
continued and developed at the boys’ various stages from
pretending to be pirates to learning football skills.
[Maternal] Grandfather stated that the boys depend on
him.
[Maternal] Grandfather has played a regular role in
decision making in the boys’ lives. [Maternal] Grandfather
attended school conferences and has dealt with discipline
issues as a team with Mother. [Maternal] Grandfather had
traveled to doctor’s appointment[s] with Mother.
[Maternal] Grandfather and Mother have co-parented
[M.R.D. and T.M.D.]. [Maternal] Grandfather vacations
with the boys. [Maternal] Grandfather assists in
homework. [Maternal] Grandfather has disciplined the
boys. [Maternal] Grandfather attends school functions
with the boys. [Maternal] Grandfather has taken the boys
to his place of employment and regularly along on jobs.
[Maternal] Grandfather testified that he “raised” his other
children the same way he is raising [M.R.D. and T.M.D.].
[Maternal] Grandfather has been [M.R.D. and T.M.D.]’s de
facto father since birth. It is clear from the testimony
presented that Maternal Grandfather and Mother together
have raised the boys. [Maternal] Grandfather’s role in
[C]hildren’s lives extends far beyond the role of a typical
grandparent. [Maternal] Grandfather is clearly one half of
the parental unit that has raised [C]hildren. [Maternal]
Grandfather’s authority, control and influence over
[C]hildren is equal to that of Mother.
Maternal Grandfather has been in the role of parent for
[C]hildren on a nearly daily basis and will continue to do
[so]. Maternal Grandfather expressed concern of providing
for the boys’ education and financial future. Grandfather’s
present job as an instructor at Pennsylvania College of
Technology will provide free tuition for the boys if they are
legally adopted by [Maternal] Grandfather.
Mother has demonstrated good cause as to why this
adoption should be allowed to proceed. Adoption by
Maternal Grandfather in this case would simpl[y]
memorialize that status quo of [M.R.D. and T.M.D.]’s lives.
Maternal Grandfather will continue to raise them as his
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[C]hildren.
* * *
The [c]ourt finds as of the date of the Petition to
Involuntar[ily] Terminate his parental rights, Father has
failed to perform his parental duties for a period of time in
excess of six (6) months and has evidenced a settled
purpose of relinquishing his parental claim. Father failed
to contact his [C]hildren or their Mother from the spring of
2007 until November of 2012. In November 2012, Father
left a voice message for Mother at her place of
employment. Father reasoned he did not know any other
means to contact Mother. The message did not mention
either of his sons. Mother had been employed by the
Williamsport Area School District since 2006 and Mother
had previously told Father of that employment. Mother
was a teacher when Father met her. Mother’s parents
continued to reside at the same address where Father had
visited with [C]hildren. Father had consulted an attorney
regarding his custodial rights in 2009. Father’s testimony
that he had no way of contacting Mother is not credible.
Father’s filing of a Petition for Custody in the 6-month
period prior to the filing for Termination alone is not
sufficient especially since this [c]ourt must consider the
entire background of the case. Father has failed to exert
himself to maintain a role in his [C]hildren’s lives. From
the [s]pring of 2007, to the date of the filing of the Petition
in February 2013, almost six years of the 8-year-old
[C]hildren’s [lives], Father has failed to show even a
passive interest in [Children]. Father’s intent to become
more involved in [C]hildren’s lives is not sufficient. A
parent has an affirmative duty to be part of [his] child’s
life.
* * *
In the present case, Father does not have a bond with
[C]hildren. The only father figure that [C]hildren have is
Maternal Grandfather. There was no testimony from any
party demonstrating any bond between Father and
[Children]. There was no evidence presented that
[C]hildren had any recollection of or even knowledge of
Father until the summer of 2013. It is clear that Father
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has no bond with [Children]. Further, termination of his
rights would not destroy an existing necessary and
beneficial relationship as there currently [is] no
relationship between Father and [C]hildren.
Conclusions of Law
1. The [c]ourt finds that [Mother] and [Maternal
Grandfather] have established by clear and convincing
evidence that [Father’s] parental rights should be
involuntarily terminated pursuant to 23 Pa.C.S. § 2511
(a)(1).
2. The [c]ourt finds that [Mother] and [Maternal
Grandfather] have established by clear and convincing
evidence that the developmental, physical and emotional
needs and welfare of [M.R.D.] and [T.M.D.] will best be
served by termination of [Father’s] parental rights.
(Id. at 3-5, 10-11, 12-13). As a result, the Orphans’ court entered a decree
that terminated Father’s parental rights to Children. Father timely filed a
notice of appeal on September 18, 2013, along with a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(a)(2)(i).
Initially, a three-judge panel reversed the Orphans’ court decision, with one
dissent. On April 1, 2015, this Court granted en banc reargument, which
followed on June 30, 2015.
Father raises three issues for review:
WHETHER THE TRIAL COURT ERRED IN DETERMINING
THAT [MOTHER AND MATERNAL GRANDFATHER] SHOWED
GOOD CAUSE UNDER SECTION 2901 OF THE ADOPTION
ACT TO PROCEED WITH THE ANTICIPATED ADOPTION OF
CHILDREN WAS CONTRARY TO THE EVIDENCE AND
CONTRARY TO CONTROLLING PRECEDENT AND LAW,
SPECIFICALLY:
1. WHETHER THE TRIAL COURT ERRED IN
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TERMINATING THE PARENTAL RIGHTS OF [FATHER]
WHEN THE PROPOSED ADOPTION BY MATERNAL
GRANDFATHER WOULD NOT CREATE A NEW,
GENUINE, PARENT-CHILD RELATIONSHIP AND
FOSTER THE CREATION OF A NEW FAMILY UNIT;
2. WHETHER THE TRIAL COURT ERRED IN
DETERMINING THAT THE ANTICIPATED ADOPTION
OF THE CHILDREN BY MATERNAL GRANDFATHER
WOULD BE IN THE CHILDREN’S BEST INTERESTS.
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE
PARENTAL RIGHTS OF [FATHER] PURSUANT TO 23
PA.C.S.A. [§] 2511(A)(1) AND IN FINDING THAT [FATHER]
EVIDENCED A SETTLED PURPOSE OF RELINQUISHING HIS
PARENTAL CLAIMS AND FAILED TO PERFORM HIS
PARENTAL DUTIES.
WHETHER THE TRIAL COURT ERRED IN TERMINATING THE
PARENTAL RIGHTS OF [FATHER] WHEN THERE WAS
INSUFFICIENT EVIDENCE THAT THE BEST INTERESTS OF
CHILDREN WOULD BE SERVED BY TERMINATION,
PURSUANT TO 23 PA.C.S.A. [§] 2511(B).
(Father’s Brief at 2-3).
In his issues combined, Father begins with a challenge to the proposed
adoption of Children by Maternal Grandfather. Specifically, Father
analogizes to several other county cases where the Orphans’ court refused
for various reasons to terminate parental rights in view of the proposed
adoption. Father argues this case is comparable because Mother’s entire
family, not just Maternal Grandfather, took shifts caring for Children. Father
claims Maternal Grandfather’s flexible work schedule allows him to help
Mother more often as needed in a manner typical of a grandparent of twins.
To emphasize Maternal Grandfather’s role as that of a typical grandparent
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Father also claims Maternal Grandfather is more relaxed about Children’s
bedtime. Father acknowledges Mother and Children lived with Maternal
Grandfather for the first two years of Children’s lives. Nevertheless, Father
asserts Mother then moved into her current residence and is financially self-
supporting. Father avers Maternal Grandfather’s contributions, whether
characterized as “gifts” or “financial support,” are all just to help “pick up the
slack.” Father maintains Maternal Grandfather’s participation in Children’s
school activities are merely as an “involved grandparent” rather than as a
parent for Children. Father insists the testimony about joint vacations is just
another example of Maternal Grandfather’s exaggerated involvement in
Children’s lives. Father also argues that Maternal Grandfather ranks a mere
third in Children’s concept of a “father,” after God and Jesus.
Father repeatedly directs our attention to Mother’s and Maternal
Grandfather’s testimony that they do not intend to live in the same house to
raise Children. Father submits the legislature intended “an intact family
unit” to evolve from a proposed third-party adoption, i.e., a “new parent-
child relationship” that would protect the integrity and stability of a new
family unit. Father relies on two cases involving proposed adoptions by a
stepparent, which were defeated by separation and the contemplation of
divorce between the natural parent and the stepparent.1 Father reasons the
proposed adoption in this case is as impermissible as it was in those cases,
1
See In re Adoption of L.J.B., 610 Pa. 213, 18 A.3d 1098 (2011) and In
re Adoption of J.D.S., 763 A.2d 867 (Pa.Super. 2000).
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because Mother and Maternal Grandfather will not be living together as an
“intact family.” Father advocates that Mother and Maternal Grandfather
must live in the same household for the proposed adoption to succeed
legally. Father again emphasizes that Maternal Grandfather’s involvement
with Children is no more than a grandparent who lets his grandchildren stay
up past their bedtime, unlike a parent who ensures a regular or strict
bedtime. Father insists the proposed adoption serves no purpose other than
to cut Father and his family out of Children’s lives, for fear of adverse effect,
when the proper procedure would be to address Children’s contact with
Father through custody proceedings.
According to Father, the only reason Mother and Maternal Grandfather
sought involuntary termination of Father’s parental rights was to get even
with Father for seeking custody of Children after so many years. But for the
custody action, Father contends the adoption would not have been proposed.
Father also states Maternal Grandfather’s relationship with Children “will not
change” even if the court denied termination of Father’s parental rights;
Maternal Grandfather still plans to include Children in his will regardless of
the outcome of this case, so adoption will not alter their ability to inherit
from him. What will change, Father says, is Children’s ability to inherit from
Father or his family, if the proposed adoption occurs. Father submits he will
no longer be available for child support or inheritance or any other resource
for Children. Father assumes terminating his parental rights to allow
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Maternal Grandfather to adopt Children will not serve Children’s best
interests because no one has considered the “stigma of this mix of roles,” or
whether Mother might marry and if Maternal Grandfather would step aside to
allow Mother’s new spouse to adopt. Father complains these realities of the
proposed adoption were not discussed, which is “simply more evidence that
this plan for adoption was created solely as a means to get Father out of the
picture.” (Id. at 28-9).
Next, Father claims he tried to contact Children, but Mother changed
her telephone number in 2007, so he could no longer reach her. Father
simply assumed Mother also changed her residence after she changed her
telephone number. Father argues he met with an attorney in 2009, but was
told his chances at custody were poor, so he did nothing to pursue custody
at that time. Father acknowledges he had contact information for Mother’s
parents, but he believed they would not have helped him reach Mother.
Father asserts he was “finally able” to track down Mother in November 2012,
at work and left a message but received no response. Given Mother’s
alleged obstacles and attempts to avoid contact, Father concludes the
statutory requirements, under 23 Pa.C.S.A. § 2511(a), were not met.
Likewise, Father takes issue with the court’s conclusion that Father is a
stranger to Children for purposes of Section 2511(b). Although he does not
dispute the court’s conclusion, Father says he has no plans to uproot
Children at this time; he just wants to develop a relationship with them.
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Father claims the court simply eliminated the additional emotional and
financial support he and his family could give Children, when it terminated
his parental rights. For all these reasons, Father concludes the proposed
adoption is contrary to statute, he had no settled purpose to relinquish his
parental rights, and termination of his parental rights is not in the best
interests of Children. We disagree with Father’s contentions.
Initially, we observe:
When reviewing a decree entered by the Orphans’ Court,
this Court must determine whether the record is free from
legal error and the court’s factual findings are supported
by the evidence. Because the Orphans’ [c]ourt sits as the
fact-finder, it determines the credibility of the witnesses,
and on review, we will not reverse its credibility
determinations absent an abuse of that discretion.
In re E.M.I., 57 A.3d 1278, 1284 (Pa.Super. 2012) (quoting In re A.J.B.,
797 A.2d 264, 266 (Pa.Super. 2002)).
In cases involving termination of parental rights, our scope
of review is broad. All of the evidence, as well as the trial
court’s factual and legal determinations, are to be
considered. However, our standard of review is limited to
determining whether the order of the trial court is
supported by competent evidence, and whether the trial
court gave adequate consideration to the effect of such a
decree on the welfare of the child. We have always been
deferential to the trial court as the fact finder, as the
determiner of the credibility of witnesses, and as the sole
and final arbiter of all conflicts in the evidence. Moreover,
this Court will affirm a termination of parental rights if
competent evidence supports the trial court’s findings,
even if the record could support an opposite result.
In re S.D.T., Jr., 934 A.2d 703, 705-06 (Pa.Super. 2007), appeal denied,
597 Pa. 68, 950 A.2d 270 (2008) (citations omitted). “The burden of proof
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in a termination case is on the petitioning party, who must establish valid
grounds for termination by clear and convincing evidence.” In re E.M.I.,
supra (citing In re J.L.C., 837 A.2d 1247, 1251 (Pa.Super. 2003)).
Section 2512 governs who may bring a petition to terminate parental
rights and what the petition must contain and provides as follows:
§ 2512. Petition for involuntary termination
(a) Who may file.─A petition to terminate parental
rights with respect to a child under the age of 18 years
may be filed by any of the following:
(1) Either parent when termination is sought with
respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco
parentis to the child and who has filed a report of
intention to adopt required by section 2531 (relating to
report of intention to adopt).
(4) An attorney representing a child or a guardian ad
litem representing a child who has been adjudicated
dependent under 42 Pa.C.S.A § 6341(c) (relating to
adjudication).
(b) Contents.─The petition shall set forth specifically
those grounds and facts alleged as the basis for
terminating parental rights. The petition filed under this
section shall also contain an averment that the petitioner
will assume custody of the child until such time as the child
is adopted. If the petitioner is an agency it shall not be
required to aver that an adoption is presently
contemplated [or] that a person with a present intention to
adopt exists.
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23 Pa.C.S.A. § 2512(a)-(b). “If the petitioner is not an agency, then the
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petition must include ‘an averment that an adoption is presently
contemplated or that a person with a present intention to adopt exists.’” In
re E.M.I., supra at 1286 (quoting In re Adoption of J.F.D., 782 A.2d 564,
567 (Pa.Super. 2001)). As a general rule, however, the biological parent
who files a petition to terminate the parental rights of the other biological
parent, with the intent to retain custody or physical care of the child, does
not have to file an accompanying report of intention to adopt. Id. at 1286.
See also 23 Pa.C.S.A. § 2531(c) (stating: “No report shall be required when
the child is the child, grandchild, stepchild, brother or sister of the whole or
half blood, or niece or nephew by blood, marriage or adoption of the person
receiving or retaining custody or physical care”).
A termination petition of one biological parent against the other, per
Section 2512(a)(1), is cognizable only if the averred adoption is foreseeable.
23 Pa.C.S.A. § 2512(b); In re E.M.I., supra at 1286. See also In re B.E.,
474 Pa. 139, 142, 377 A.2d 153, 154 (1977) (stating plan for adoption is
required, when one biological parent seeks involuntary termination of
parental rights of other biological parent). Although a petition might satisfy
the statutory requirements for termination of parental rights, a court still
cannot grant the petition without a corresponding plan for adoption of the
child. In re Adoption of L.J.B., supra at 228, 18 A.3d at 1107 (reversing
involuntary termination of mother’s parental rights, where termination
decree was entered to make way for stepmother’s adoption of child, in light
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of new evidence that stepmother no longer wanted to adopt child). A
contemplated adoption is required in this context because “the purpose of
involuntary termination of parental rights is to dispense with the need for
parental consent to an adoption when, by choice or neglect, a parent has
failed to meet the continuing needs of the child.” Id. at 229-30, 18 A.3d at
1108.
Significantly, “Any individual may become an adopting parent.” 23
Pa.C.S.A. § 2312. The “any individual” language permits a non-spouse to
adopt even where one of the natural parents continues to retain custody,
upon “cause shown.” In re Adoption of R.B.F., 569 Pa. 269, 280-81, 803
A.2d 1195, 1202 (2002); 23 Pa.C.S.A. § 2901. A non-spouse adoptive
nominee can be a child’s maternal grandfather. In re Adoption of J.M.,
991 A.2d 321, 326 (Pa.Super. 2010). The purpose of the “cause shown”
approach, borrowed from Section 2901, is consistent with legal precedent
which requires the court to analyze the integrity of the “proposed adoption”
and if it is likely to happen. See In re T.R., 502 Pa. 165, 169 n.10, 465
A.2d 642, 644 n.10 (1983) (insisting court should actually consider adoptive
candidate’s intent to adopt, and not merely accept adoption averment on its
face, to determine if petitioner(s) genuinely seek termination “solely as an
aid to adoption”). See also In re Adoption of L.J.B., supra at 230, 18
A.3d at 1108 (stating court should consider, and not merely accept on its
face, averment of intent to adopt, to ascertain that termination is sought as
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aid to adoption and formation of new parent-child relationship).
Assuming the termination pleading itself satisfies the statutory
prerequisites for a hearing, the Orphans’ court applies the two-part test for
termination of parental rights under Section 2511 of the Adoption Act. See
23 Pa.C.S.A. § 2511. The initial focus is on the conduct of the parent whose
rights are at issue. In re C.L.G., 956 A.2d 999, 1004 (Pa.Super. 2008) (en
banc). Termination under Section 2511(a)(1) involves the following:
To satisfy the requirements of [S]ection 2511(a)(1), the
moving party must produce clear and convincing evidence
of conduct, sustained for at least the six months prior to
the filing of the termination petition, which reveals a
settled intent to relinquish parental claim to a child or a
refusal or failure to perform parental duties. In addition,
Section 2511 does not require that the parent
demonstrate both a settled purpose of relinquishing
parental claim to a child and refusal or failure to
perform parental duties. Accordingly, parental rights
may be terminated pursuant to Section 2511(a)(1) if
the parent either demonstrates a settled purpose of
relinquishing parental claim to a child or fails to
perform parental duties.
Once the evidence establishes a failure to perform parental
duties or a settled purpose of relinquishing parental rights,
the court must engage in three lines of inquiry: (1) the
parent’s explanation for his…conduct; (2) the post-
abandonment contact between parent and child; and (3)
consideration of the effect of termination of parental rights
on the child pursuant to Section 2511(b).
In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal emphasis
added). Regarding the six-month period prior to filing the termination
petition:
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[T]he trial court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual
circumstances of each case and consider all explanations
offered by the parent facing termination of his… parental
rights, to determine if the evidence, in light of the totality
of the circumstances, clearly warrants the involuntary
termination.
In re B.,N.M., supra at 855 (citations omitted).
“The biological relationship of parent and child does not vest in the
parents a property right to the custody of the child.” In re E.F.V., 461 A.2d
1263, 1267 (1983). Instead, a parent-child relationship is a status, “and
one in which the state has an interest to protect the best interest of the
child.” Id. Maintaining a parent-child relationship requires a continued
interest in the child and a genuine effort to maintain communication and
association with the child. In re E.M., 908 A.2d 297, 305-06 (Pa.Super.
2006). See also In Re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004),
appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005) (determining parental
duty encompasses more than just financial obligation; relationship requires
parent to exert himself to take and maintain place of importance in child’s
life and to act affirmatively with good faith interest and effort, even in
difficult circumstances).
A parent is required to exert a sincere and genuine effort
to maintain a parent-child relationship; the parent must
use all available resources to preserve the parental
relationship and must exercise “reasonable firmness” in
resisting obstacles placed in the path of maintaining the
parent-child relationship. This [C]ourt has repeatedly
recognized that parental rights are not preserved…by
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waiting for a more suitable or convenient time to perform
one’s parental responsibilities while others provide the
child with his or her immediate physical and emotional
needs.
In re C.M.S., 832 A.2d 457, 462 (Pa.Super. 2003), appeal denied, 580 Pa.
687, 859 A.2d 767 (2004). All explanations considered, if the parent makes
reasonable attempts to overcome obstacles created by the party seeking
termination, then the parent’s failure to pursue legal action more promptly
will not alone justify termination. In re Adoption of L.J.B., supra at 253-
54, 18 A.3d at 1122.
The second prong of the termination test centers on the needs and
welfare of the child. In re Z.P., 994 A.2d 1108, 1121 (Pa.Super. 2010); 23
Pa.C.S.A. § 2511(b). “A proper Section 2511(b) analysis focuses on whether
termination of parental rights would best serve the developmental, physical,
and emotional needs and welfare of the child.” In re T.D., 949 A.2d 910,
920 (Pa.Super. 2008), appeal denied, 601 Pa. 684, 970 A.2d 1148 (2009).
Under Section 2511(b), the court should examine intangibles such as “love,
comfort, security, and stability” when determining the needs and welfare of
the child. Id.In the circumstance of one biological parent seeking to terminate the
parental rights of the responding parent, prevailing case law indicates that,
at the termination hearing, the petitioning parent must also demonstrate the
planned adoption is in the child’s best interests, before the court will
terminate the parental rights of the responding parent. See In re
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Adoption of L.J.B., supra at 232, 18 A.3d at 1110-11 (implying no gain to
child or society can be achieved by terminating one parent’s rights to permit
adoption by another person who is unwilling or unqualified to adopt). Thus,
as part of its Section 2511(b) analysis of the needs and welfare of the child
in this particular situation, the court evaluates the evidence pertaining to the
“proposed adoption” that was averred in the termination petition. See
generally id.With regard to whether cohabitation is required for the proposed
adoption, the case of In Re Adoption of J.M. is both precedential and
instructive. The mother and the father in J.M. were the unmarried, natural
parents of the child. Given the father’s unmitigated parental inaction for two
years, the mother and the maternal grandfather took primary care of the
child. The mother and the maternal grandfather filed a private petition
pursuant to 23 Pa.C.S.A § 2511 seeking involuntary termination of the
father’s parental rights. At the evidentiary hearing, Mother testified that the
child does not know the father and fears him as the child would fear any
other stranger. The father’s total interaction with the child consisted of one
birthday card and a single one-hour visit with the child that occurred in a
Wal-Mart parking lot. Further, the father did not contact the mother to
inquire about the child’s needs and welfare. The court found the mother had
established statutory grounds for involuntary termination of the father’s
parental rights under subsection 2511(a)(1).
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The maternal grandfather testified that he interacted with the child for
two to four hours every day and more during the weekends, provided
financially for the child, and sincerely desired to fill the void created by the
father’s absence. Additionally, the trial court acknowledged no bond existed
between the father and the child. Nevertheless, the trial court did not find
termination was in the child’s best interest pursuant to subsection 2511(b),
because “no new family unit would result given that Mother and Maternal
Grandfather have maintained completely separate households since the
child’s birth and Maternal Grandfather has never maintained physical
custody of Child.” In re Adoption of J.M., supra at 325-26 (reciting trial
court’s rationale in which court considered cohabitation as absolutely
necessary to proposed adoption).
On appeal, this Court held the mother had proved by clear and
convincing evidence that involuntary termination of the father’s parental
rights was warranted under Section 2511(a) and that severing the father’s
parental rights would best serve the child’s developmental, physical, and
emotional needs and welfare under Section 2511(b). This Court explained:
Interspersed throughout its needs and welfare analysis,
the trial court made factual findings that the adoption
contemplated by Maternal Grandfather was not in J.M.’s
best interest because it would not create a traditional,
nuclear family. Essentially, the trial court considered
cohabitation to be the sine qua non of the family unit.
Specifically, the court reasoned, no new family unit would
result given that [Mother and Maternal Grandfather] have
maintained completely separate households since the
child’s birth and [Maternal Grandfather] has never
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maintained physical custody of [J.M.]. The trial court
continued, although Mother seeks to fashion a formal
parental relationship between Maternal Grandfather and
J.M., she did not present evidence that a formal
relationship was in the child’s best interest or that J.M.
considered Maternal Grandfather to be her father rather
than her grandfather.
Id. at 325-26. Our Court rejected the notion that cohabitation or having to
live under the same roof is a necessary component for creation of the “new
family unit” for purposes of termination of parental rights and adoption. Id.
Instead, this Court reversed the trial court’s outright refusal to terminate the
father’s parental rights and remanded the case for the trial court to permit
the mother to show “cause” for the proposed adoption to proceed. Id. at
327.
Instantly, the Orphans’ court found that Mother and Maternal
Grandfather had established ample evidence to support involuntary
termination of Father’s parental rights under Sections 2511(a) and (b), and
showed good cause to proceed with Maternal Grandfather’s proposed
adoption of Children. In eight years, Father visited Children only two or
three times, and he refused to allow them to come to his home or meet his
extended family. Father claimed he had no way of contacting Mother or
Children, although he conceded he eventually located Mother in 2012 by
computer and her email address had remained the same throughout the
relevant time. To excuse his lack of effort at initiating or maintaining
contact with Children, Father said he was “not a writer,” “not an email
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person,” and “not a computer person.” (See N.T., 8/13/13─p.m., at 67, 69,
72; R.R. at 106a-107a.) Father asserted he gave Mother some child
support, but he could not recall when or how much. (Id. at 62-63; R.R. at
104a-105a). Father further conceded that Mother had tried to develop a
relationship between Children and Father and his family for several years
after Children’s birth. (Id. at 71; R.R. at 107a). Father also knew where
Mother’s parents live, and he had a viable address for Mother until 2010.
(Id. at 74; R.R. at 107a). Nevertheless, Father insisted Mother cut him off
because he could not talk to her or see Children or find out how they were.
(Id. at 76-77; R.R. at 108a). The Orphans’ court found Father’s testimony
incredible.
In any event, Father had an affirmative duty to take part in Children’s
lives, which included overcoming any perceived obstacles to fulfilling that
duty. See In re C.M.S., supra. When Father filed his petition for custody
in 2012, he had not contacted or visited or supported Children in any
manner for almost six years, which is well in excess of the six-month
timeframe under Section 2511(a)(1). Therefore, Father evidenced both a
settled purpose of relinquishing his parental claim to Children and a failure
to perform his parental duties. See In re Z.S.W., supra.Further, the evidence demonstrated Father and Children are complete
strangers, with no parent-child bond. Children had no recollection or even
real knowledge of Father until 2013, and do not identify him as their father.
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Instead, Maternal Grandfather consistently provided Children with physical,
emotional, and financial support. After deliberately eschewing all of his
parental responsibilities for almost six years, Father sought to insert himself
into Children’s lives, based solely on a personal sense of entitlement.
As part of the subsection (b) analysis, the record shows Maternal
Grandfather contemplated adopting Children for years but saw no immediate
need to do so, given Father’s absolute desertion. Maternal Grandfather
emphasized Father had been absent from the Children’s lives for a majority
of their eight years. Only when Father filed his unforeseen petition for
custody of Children, did Mother and Maternal Grandfather need court
intervention to protect Children. For eight years, Mother and Maternal
Grandfather raised Children without Father’s assistance and regardless of
Father’s deliberate failure to act. Maternal Grandfather filled the void Father
had created. Maternal Grandfather continues to provide for the Children
financially and emotionally. Mother and Children lived with Maternal
Grandfather for two years after Children’s birth. Maternal Grandfather
shared parental duties with Mother every day by feeding Children, changing
their diapers, picking them up from daycare, and putting them to bed. After
Mother and Children moved into a separate residence owned by Maternal
Grandfather, he continued his daily involvement with Children and
participated in Children’s doctor appointments, school conferences, sports
and extracurricular activities. Maternal Grandfather testified Mother and
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Children have more than half of their meals at his residence. (See
generally N.T., 8/13/13─a.m., at 69-86; 8/13/13─p.m., at 3-31; R.R. at
69a-86a; 90a-97a.)
The Orphans’ court had competent evidence to decide: Maternal
Grandfather’s involvement exceeds that of a “normal” grandparent; which
testimony was credible; and the primary purpose of the petition for
involuntary termination of Father’s parental rights was to safeguard
Children’s best interests. See In re Z.S.W., supra; In re S.D.T., Jr.,
supra. The Orphans’ court sat as the fact-finder in this case, and the
court’s findings on the credibility of the witnesses and the motivation for
their actions have record support. In its Rule 1925(a) opinion, the court
wrote:
Maternal Grandfather testified to adoption contemplated
himself years before Father contacted Mother. This
testimony was credible. Maternal Grandfather testified
that he had not proceeded with adoption earlier because
he “didn’t see a need.” “There was no threat of this
happening and then all of a sudden it does….” In the case
at hand, termination of parental rights only became
necessary once Father contacted Mother in 2012. Maternal
[G]randfather, Mother and [Children] acted as a family
with little involvement from Father from the time of
[Children’s] birth [in October 2004]. Father had not
contacted Mother from Spring 2007 until December 2012.
There were no indications from Father that necessitated
Maternal Grandfather and Mother formalizing their family
through termination of parental rights and adoption.
(Orphans’ Court Opinion, filed October 17, 2013, at 2) (internal citations to
the record omitted). In this statement, the Orphans’ court made clear it
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understood Mother’s and Maternal Grandfather’s objective in filing their
termination petition was to protect Children. The timing of their petition is
not dispositive of any retaliatory intent, particularly in light of the Orphans’
court’s conclusion otherwise. See In re A.J.B., supra. As such, the record
supports the Orphans’ court’s conclusion that Mother and Maternal
Grandfather satisfied the statutory requirements for termination under
Section 2511(a)(1) and (b).
With respect to Father’s contention that the proposed adoption will not
create a new family unit, we conclude “cohabitation” is not the sine qua non
of the “new family unit.” 2 See In re Adoption of J.M., supra. Neither the
Adoption Act nor relevant case law defines “new family unit” or “new parent-
child relationship” for purposes of a proposed adoption in the present
circumstances. Further, this Court has already rejected the inflexible notion
that cohabitation is absolutely required for a proposed adoption. In other
words, the fact that Mother and Maternal Grandfather live in separate
residences, both of which are family-owned residences, does not by itself
thwart the proposed adoption plan in this case. See id. Such a rigid
mindset is alarming in today’s world, because that mindset is rooted in the
concept of the traditional, nuclear family as consisting of a man and a
woman, a relationship formalized through marriage, and cohabitation. To
2
The language “intact family unit” derives from those cases involving
stepparent adoption where the natural parent and the stepparent are
divorcing, and the stepparent (adoptive nominee) has separated from the
natural parent and no longer wants to adopt.
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define “family-unit” this way improperly narrows the purpose of the Adoption
Act and blatantly ignores evolving societal norms. Father’s reliance on In re
Adoption of L.J.B., supra is likewise misplaced because the L.J.B. case
was primarily concerned with the separation and pending divorce between
the child’s natural father and his wife, the adoptive nominee, who no longer
wanted to adopt the child. Because the proposed adoption was in jeopardy,
the Supreme Court could not affirm termination of the natural mother’s
parental rights. The facts of L.J.B. differ remarkably from the present case
in many respects, and to say the present case is like L.J.B. is an
unwarranted stretch.
As the Orphans’ court did, we also focus on the familial relationship
Maternal Grandfather established with Children, instead of the superficial,
indefinite externals and speculations Father suggests, such as what if Mother
should marry, which are nothing more than mere conjecture. The primary
purpose of the Adoption Act is served by securing Children in the parent-
child relationship as proposed with Maternal Grandfather, the adoptive
nominee. In re E.M.I., supra. The record makes clear Maternal
Grandfather and Children already enjoy a healthy, deep emotional bond.
Maternal Grandfather serves as a de facto father to Children. Formal
adoption in this case will preserve the stability Children already know and
still create a “new” parent-child relationship, because adoption will legalize
their respective rights and obligations. This legal authorization is what
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establishes the “new” in the existing de facto parent-child relationship.
Maternal Grandfather testified he both understands and accepts the legal
obligations he will have as a parent through the proposed adoption.
Therefore, Children will not become “state-created orphans,” as Father
insinuates.
Based upon the foregoing, we hold the Orphans’ court correctly
terminated Father’s parental rights to Children, under the facts and
circumstances of this case; Maternal Grandfather qualified as a “good cause”
candidate to adopt Children and his proposed adoption of Children is both
legally feasible and realistically foreseeable; thus, termination of Father’s
parental rights best serves the developmental, physical, and emotional
needs and welfare of Children. Accordingly, we affirm.
Decree affirmed.
President Judge Emeritus Bender, Judges Panella, Lazarus, and Mundy
join the opinion.
Judge Stabile files a dissenting opinion in which Judges Donohue and
Shogan join.
Judge Allen did not participate in the consideration or decision of this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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