In Re: Adopt. of M.R.D. and T.M.D. Appeal of: M.C.

J-A07036-14
2015 Pa. Super. 32
IN 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., DONOHUE, J., AND STABILE, J.
DISSENTING OPINION BY GANTMAN, P.J.: FILED FEBRUARY 13, 2015
With all due respect, I disagree with the majority’s decision.
Notwithstanding the majority’s professions to the contrary, in my opinion the
majority fails to follow the appropriate standard of review and ignores
precedent. The Orphans’ court has already weighed the termination
evidence. Yet, the majority reinterprets the record to support reversal while
conflating the concepts of termination and adoption. That decision does no
justice to this case, especially in light of the changing image of what
constitutes a “family unit.” To the extent the majority addresses relevant
concepts, I think it does so in the abstract and without practical wisdom. On
this record, I remain firmly convinced Mother and Maternal Grandfather
provided sufficient evidence to uphold the involuntary termination of Father’s
parental rights. Hence, I dissent.
The Orphans’ court set forth its findings of fact and conclusions of law
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in its opinion as follows:
Finding of Facts
1. [Children] were born [in October 2004], in Lycoming
County, Pennsylvania. [C]hildren 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. [C]hildren’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.
11. In December of 2004, Father traveled to Pennsylvania
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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 she
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.
21. At the time of the hearing on the Petition for
Termination of parental rights, Father had not seen
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[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
Guardian Ad Litem regarding [F]ather.
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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).
Mother and Maternal Grandfather filed an amended petition on
February 28, 2013. On August 13, 2013, the Orphans’ court held a
termination hearing. As a result of the hearing and arguments presented,
the court concluded:
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 [Children’s] lives. Maternal
Grandfather will continue to raise them as his children.
* * *
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 children 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
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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 children’s lives. From the
Spring 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 the Children’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
[Children]. The only father figure that [Children] have is
Maternal Grandfather. There was no testimony from any
party demonstrating any bond between Father and
[C]hildren. There was no evidence presented that
[Children] had any recollection of or even knowledge of
Father until the summer of 2013. It is clear that Father
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 [Children].
(Id. at 5, 10-11, 12). On August 19, 2013, the Orphans’ court granted
Mother and Maternal Grandfather’s petition and 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).
Father now raises three issues for our 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
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CHILDREN WAS CONTRARY TO THE EVIDENCE AND
CONTRARY TO CONTROLLING PRECEDENT AND LAW,
SPECIFICALLY:
1. WHETHER THE TRIAL COURT ERRED IN
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).
Father argues 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. 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 supporting herself. Father avers
Maternal Grandfather’s financial contributions are only to help “pick up
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slack.” Father maintains Maternal Grandfather’s actions are as an involved
grandparent rather than as a parent for Children. Father emphasizes Mother
and Grandfather’s testimony stating they do not intend to live in the same
residence to raise Children. Additionally, Father points to Maternal
Grandfather’s testimony stating his involvement with Children would not
change even if the court denied termination of Father’s parental rights.
Father contends Maternal Grandfather still plans to include Children in his
will regardless of the outcome of this case, so their ability to inherit will not
change. Father submits terminating his parental rights would not serve the
creation of a new family unit, and 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.
Father further argues he attempted 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 asserts he attempted online searches and e-
mails to Mother but received no response. Father acknowledges he had
contact information for Mother’s parents, but insists they would not have
helped him contact Mother. Father maintains he just wants to develop a
relationship with Children. Father concludes he did not have a settled
purpose to relinquish his parental claim and termination of his parental
rights was not in the best interests of Children.
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“The standard of review in cases involving the termination of parental
rights is limited to the determination of whether the orphans’ court’s decree
is supported by competent evidence.” In re Z.S.W., 946 A.2d 726, 728
(Pa.Super 2008) (quoting In re Adoption of J.D.S., 763 A.2d 867, 870
(Pa.Super. 2000)). The well-settled principles of appellate review in this
context are:
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’ Court 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 A.J.B., 797 A.2d 264, 266 (Pa.Super. 2002). We have previously
stated:
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.
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 in
a termination case is on the petitioning party, who must establish valid
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grounds for termination by clear and convincing evidence. 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, 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 nor that a person with a present intention to
adopt exists.
* * *
23 Pa.C.S.A. § 2512. If the petitioner is not an agency, then the petition
must include “an averment that an adoption is presently contemplated or
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that a person with a present intention to adopt exists.” In re Adoption of
J.F.D., 782 A.2d 564, 567 (Pa.Super. 2001).
A petition to terminate a natural parent’s parental rights, filed by one
natural parent against the other under Section 2512(a)(1), is cognizable
only if an adoption of the child is foreseeable. 23 Pa.C.S.A. § 2512(b); In
re E.M.I., 57 A.3d 1278, 1286 (Pa.Super. 2012). See also In re B.E., 474
Pa. 139, 142, 377 A.2d 153, 154 (1977) (stating petition filed by one
biological parent for involuntary termination of other biological parent’s
parental rights can survive only “in connection with a plan for adoption”).
Even when a petition might satisfy the statutory requirements for
termination, a court still cannot grant the petition without a corresponding
plan for an anticipated adoption of the child. In re Adoption of L.J.B., 610
Pa. 213, 228, 18 A.3d 1098, 1107 (2011) (reversing involuntary termination
of mother’s parental rights where termination decree was entered to make
way for stepmother’s adoption of child, in light of new evidence that
stepmother no longer wanted to adopt child). Thus, a “contemplated
adoption” is required in this context because Section 2512(a)(1) was not
designed as a punitive measure to penalize an ineffective or negligent
parent; the attendant plan for adoption serves the primary purpose of the
Adoption Act by putting the child in a new parent-child relationship with the
adoptive candidate. In re E.M.I., supra at 1285-86.
Significantly, “Any individual may become an adopting parent.” 23
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Pa.C.S.A. § 2312. The “any individual” language permits a non-spouse to
adopt a child even where one of the child’s natural parents continues to
retain custody, upon “good cause shown.” In re Adoption of R.B.F., 569
Pa. 269, 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 “good cause
shown” approach borrowed from Section 2901 is consistent with legal
precedent that requires the court to analyze the integrity of the “proposed
adoption” of the child and whether it was 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).
As a general rule, 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. In re E.M.I., supra 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”).
In the process of terminating a natural parent’s parental rights, the
court must also examine if the proposed adoption fosters a “new parent-
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child relationship.” In re Adoption of L.J.B., supra at ___, 18 A.3d at
1108. The “singular concern” of the Adoption Act is to establish a new
“parent-child relationship.” In re T.R., supra at 169, 465 A.2d at 644. The
rule makes sense because termination of the natural parent’s rights and
allowance of adoption serves to protect the integrity of the new family unit
and stability for the adoptee. In re Adoption of J.D.S., supra at 871.
Assuming the pleading meets the threshold requirements, the court
proceeds with 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). A party seeking
termination under Section 2511(a)(1) must demonstrate the other parent
has either: (1) shown a settled purpose to relinquish his parental claim to
the child; or (2) failed to perform parental duties for at least six months
prior to the termination petition. In re I.J., 972 A.2d 5, 10 (Pa.Super.
2009). The biological relationship of a parent and child does not vest in the
parent 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 one of status,
which protects the best interests 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
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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).
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., supra at 730 (internal emphasis added). Regarding the six-
month period prior to filing the termination petition:
[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
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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 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).
In this context, the court should examine intangibles such as “love, comfort,
security, and stability” when determining the needs and welfare of the child.
Id. In the context of a termination petition filed by one biological parent
against the responding parent, current case law indicates that at the
termination hearing the petitioning parent must 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 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 setting,
the court evaluates the “proposed adoption” that was averred in the
termination petition. See generally id.
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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). 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 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
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Grandfather has never maintained physical custody of Child.” In re
Adoption of J.M., supra at 325-26.
On appeal, this Court reversed the trial court’s order refusing to
terminate the father’s parental rights. 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).
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
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 of cohabitation or living under
the same roof as a necessary component of a “new family unit.” Id.
Instead, this Court reversed and remanded the case for the trial court to
analyze whether the mother had succeeded in showing cause why the
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proposed adoption should 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
shown good cause to proceed with the proposed adoption of Children. In
eight years, Father visited Children only two or three times, and refused to
allow them come to his home or meet his extended family. Father claimed
he had no way of contacting Mother or Children, but the trial court found
that testimony incredible. In any event, Father had an affirmative duty to
take part in Children’s lives, which included overcoming any obstacles to
exercising that duty. See In re C.M.S., 832 A.2d 457 (Pa.Super. 2003),
appeal denied, 580 Pa. 687, 859 A.2d 767 (2004). At the time Father filed
his petition for custody, he had not contacted or visited or supported
Children for almost six years, which is well in excess of the six months
timeframe pursuant to 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 no bond existed between Father
and Children. They do not identify him as their father. Children had no
recollection or real knowledge of Father until 2013. Maternal Grandfather
has consistently provided Children with the emotional and financial support
to fill the void Father had created. Thus, Mother and Maternal Grandfather
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demonstrated termination of Father’s parental rights would best serve the
developmental, physical, and emotional needs and welfare of Children under
Section 2511. See In re T.D., supra; In re Z.S.W., supra. After
deliberately eschewing all of his parental responsibilities for almost six years,
should Father now be allowed to insinuate himself in Children’s lives, based
solely on entitlement, without regret or promise of reform?
I think the majority misapplies the appropriate standard of review.
Although the majority acknowledges the Orphans’ court found Maternal
Grandfather’s testimony credible, the majority improperly reweighs the
evidence and decides the principal purpose of Mother and Maternal
Grandfather’s petition for involuntary termination of Father’s parental rights
was to punish or retaliate against Father for seeking custody. I think the
majority infuses the petition with punitive intent. Contrary to the majority’s
view, I maintain we should permit the Orphans’ court to sit as the fact-finder
in the case and respect the court’s findings on the credibility of the witnesses
and the motivation for their actions. 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
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[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 court made clear it believed
Mother and Maternal Grandfather’s objective in filing their petition was to
protect Children and not to retaliate or get even with Father. The timing of
their petition is not dispositive of punitive intent, particularly in light of the
court’s conclusion otherwise. We are an error-correcting Court, without
authority to reverse credibility determinations, which the record supports,
simply to reach a different conclusion. See In re A.J.B., supra.
Further, the majority demonstrates a fundamental misunderstanding
of the facts of the case. Maternal Grandfather testified he had contemplated
adopting Children for years but saw no immediate need to do so, given
Father’s desertion. Maternal Grandfather emphasized Father had been
absent from the Children’s lives for a majority of their eight years. When
Father filed his unforeseen petition for custody of Children, Mother and
Maternal Grandfather then needed court intervention to protect Children.
The majority fails to recognize the distinction between the need for court
intervention and the purposeful use of the court system to retaliate against
another person. For eight years, Mother and Maternal Grandfather raised
Children without Father’s assistance and regardless of Father’s deliberate
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failure to act. Maternal Grandfather filled the void Father had created.
Maternal Grandfather provided for the Children financially and emotionally
the entire time. 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 Children 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 Children
have more than half of their meals at his residence. Maternal Grandfather’s
actions exceed those of just a “normal” grandparent. The Orphans’ court
had competent evidence to decide which testimony was credible and
whether the primary purpose of the petition for involuntary termination of
Father’s parental rights was to safeguard Children or merely as punishment
or retaliation against Father. See In re Z.S.W., supra; In re S.D.T., Jr.,
supra.
Finally, the majority lacks appreciation for precedent. The majority
acknowledges Maternal Grandfather’s exercise of parental duties but
concludes his conduct does not establish a “new parent-child relationship” or
“new family unit.” Like the trial court in In re Adoption of J.M., the
majority here considers cohabitation as the sine qua non of the “new family
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unit.” In fact, neither the Adoption Act nor relevant case law defines “new
family unit” or “new parent-child relationship.” In my opinion, this Court has
already rejected the majority’s inflexible notion. In other words, the fact
that Mother and Maternal Grandfather reside in separate residences should
not be dispositive of this case. See In re Adoption of J.M., supra. A rigid
mindset like this one is alarming because it reverts to the perception of the
traditional, nuclear family as consisting of a man and a woman, a
relationship formalized through marriage, and cohabitation. To define
“family-unit” this way improperly narrows the purpose of the Adoption Act
and ignores evolving societal norms. Moreover, the majority’s reliance on
In re Adoption of L.J.B., supra is misplaced because the L.J.B. case
concerned primarily a separation and a pending divorce between the child’s
father and his wife, who had been the adoptive nominee but no longer
wanted to adopt the child. I think the facts of L.J.B. differ remarkably from
the present case, and it is a fragile and unwarranted stretch to use L.J.B. as
dispositive.
As the Orphans’ court did, we should focus on the familial relationship
Maternal Grandfather established with Children, instead of superficial,
indefinite externals and what-ifs, which are nothing more than mere
conjecture. The primary purpose of the Adoption Act is to secure Children in
a parent-child relationship with the adoptive nominee. In re E.M.I., supra.
Maternal Grandfather and Children currently enjoy a deep emotional bond.
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Maternal Grandfather serves as a de facto father to Children. Adoption will
still create a “new” parent-child relationship in the legal sense because it
proposes to validate their respective rights and obligations. This legal
authorization is what establishes the “new” in the already existing de facto
parent-child relationship between Maternal Grandfather and Children.
Maternal Grandfather testified he both understands and accepts the legal
obligations he will have as a parent through adoption. Therefore, Children
will not become “state-created orphans” as the majority suggests. I am
convinced Mother and Maternal Grandfather demonstrated good cause why
the adoption should proceed for purposes of terminating Father’s parental
rights, and I would affirm the Orphans’ court decision granting their
termination petition. Accordingly, I dissent.1
1
I hope our Supreme Court will give us guidance in this context.
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