J-S40015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ADOPTION OF: X.P.D.                : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                                          :
                                          :
                                          :
APPEAL OF: K.K., NATURAL MOTHER           : No. 128 WDA 2015

            Appeal from the Order entered December 22, 2014,
                 Court of Common Pleas, Butler County,
               Orphans’ Court at No. OA No. 2011-00035a

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

CONCURRING MEMORANDUM BY DONOHUE, J.:              FILED AUGUST 26, 2015

      I agree with the learned Majority’s conclusion that the orphans’ court

did not err or abuse its discretion by terminating Mother’s parental rights to

Child. In my view, however, the Majority’s decision is incomplete, as it fails

to address Stepmother’s intention to adopt Child. My reasoning follows.

      “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.” In re E.M.I., 57 A.3d 1278,

1285 (Pa. Super. 2012) (emphasis added); see also In re B.E., 377 A.2d

153, 154-55 (Pa. 1977) (“[T]he Adoption Act provides for termination of

parental rights only in connection with a plan for adoption … [T]he

Legislature intended the petition for involuntary termination of parental

rights to be available solely as an aid to adoption.”) (footnote omitted). Our

Supreme Court has held that orphans’ courts “should consider, and not

merely accept on its face,” a stepparent’s statement that he or she intends



*Retired Senior Judge assigned to the Superior Court.
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to adopt the spouse’s child upon termination of the other parent’s rights. In

re Adoption of L.J.B., 18 A.3d 1098, 1108 (Pa. 2011) (quoting In re T.R.,

465 A.2d 642, 644 n.10 (Pa. 1983)). This is necessary to ensure “that the

issue of whether they genuinely seek termination solely as an aid to

adoption to thereby establish a new parent-child relationship, the singular

concern of the Adoption Act, [is] properly [] determined.” Id.

      Although Mother did not raise a claim on appeal questioning

Stepmother’s intention to adopt Child, a genuine intent to adopt Child is a

prerequisite to permitting the termination of parental rights.       See In re

Adoption of J.D.S., 763 A.2d 867, 870-71 (Pa. Super. 2000). In J.D.S.,

the child’s stepfather filed a petition to involuntarily terminate the biological

father’s parental rights, concomitantly stating his intention to adopt the child

upon termination. Id. at 868. The mother filed notice of her consent to the

stepfather’s proposed adoption. Id. The orphans’ court granted the petition

to terminate the father’s parental rights.       On appeal, counsel for the

stepfather and mother sought to withdraw as appellate counsel based upon

the mother and stepfather’s separation and the belief “that divorce was

imminent.”    Id. at 869.   We remanded the case to the orphans’ court to

determine whether the stepfather still intended to adopt the child in light of

his marital problems with the child’s mother.           Id.    At the remand

proceeding, the stepfather testified: “Sometimes there is a lot of anger in

separation situations, what anger brings out. I don't know what the future



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holds. Maybe we will reconcile. Maybe we won’t. There’s not a definite

answer.” Id. (record citation omitted).

      Upon return of the case to this Court for decision, we concluded as

follows:

               [W]e find the evidence does not satisfy the
           burden of proof applicable in parental termination
           cases involving a stepparent adoption. While the
           evidence could establish that father’s conduct, or
           lack thereof, indicates “a settled purpose of
           relinquishing parental claim to a child or has refused
           or failed to perform parental duties”, 23 Pa.C.S.A. §
           2511(a)(1), this evidence becomes applicable only if
           the procedural     status of the case is such that
           termination is permissible.

              The Adoption Act provides:

              Unless the court for cause shown determines
              otherwise, no decree of adoption shall be entered
              unless the natural parent or parents’ rights have
              been terminated ... and all other legal
              requirements have been met. If all legal
              requirements have been met, the court may enter
              a decree of adoption at any time.

           23 Pa.C.S.A. § 2901, Time of entry of decree of
           adoption (emphasis added). The judicial discretion
           provided by this section cannot be exercised unless
           and until the statutory requirements leading up to
           the adoption have been met and, until that time, the
           best interest and general welfare of the child cannot
           be considered. In Interest of Coast, [] 561 A.2d
           762 ([Pa. Super.] 1989), appeal denied, [] 575 A.2d
           560 ([Pa.] 1990).

              Termination of the natural parent’s rights prior to
           adoption and allowance of stepparent adoption is for
           the purposes of protecting the integrity and stability
           of the new family unit. Because the primary function
           of government and law is to preserve and perpetuate


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           society, the traditional family structure is given every
           reasonable     presumption      in   its   favor.   This
           comprehends an intact and subsisting family
           including a stepparent.

                                   *     *   *

              No gain to the child or society is achieved by
           permitting the termination of the natural father’s
           parental rights in order to permit adoption by a
           stepfather who no longer resides with the child’s
           mother. The policy consideration for permitting a
           stepparent adoption is defeated by the separation
           and contemplation of divorce. Under the facts of this
           case, as evidenced by the testimony on the record,
           we find the petitioner has not met his burden of
           establishing    the    statutory prerequisite     for
           termination of father’s rights.

              Without implementation of section 2701, Consent
           to adopt, which must be read in pari materia with
           section 2511(a)(1), we conclude termination of
           father’s parental rights was improper.

Id. at 870-72 (emphasis supplied).

     Although the Majority briefly mentions that Stepmother filed notice of

her intention to adopt Child upon the orphans’ court granting Father’s

petition to terminate Mother’s parental rights,1 it does not discuss the




1
   I note that although Stepmother filed a formal report of her intention to
adopt Child, the Adoption Act did not require her to do so. See 23 Pa.C.S.A.
§ 2531(c) (“No report [of intention to adopt] shall be required when the
child is the … stepchild … of the person receiving or retaining custody or
physical care.”). The Adoption Act did require Father in his petition to
involuntary terminate Mother’s parental rights to Child to “aver that an
adoption is presently contemplated [and] that a person with a present
intention to adopt exists,” and the record reflects that he complied with this
requirement. See 23 Pa.C.S.A. § 2512(b); In re E.M.I., 57 A.3d 1278,


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orphans’ court’s consideration of whether Stepmother in fact intended to

adopt Child. My review of the record reveals that the orphans’ court did not

make a finding specific to Stepmother’s intention regarding her adoption of

Child.   The orphans’ court did find, however, that “Stepmother and Child

have a [m]other-child relationship and that Stepmother has provided the

primary parenting needs of Child since Father’s and Stepmother’s date of

marriage [in 2009].” Orphans’ Court Opinion, 3/5/15, at 18. Furthermore,

the record reflects that in addition to Father averring in his termination

petition that Stepmother intended to adopt and Stepmother filing a report of

her intention to adopt, Stepmother testified at the termination hearing

regarding her continued intention to adopt Child if the orphans’ court

terminated Mother’s parental rights.    N.T., 7/8/14, at 15.   This Court has

found that a stepmother’s participation in the termination hearing satisfied

the requirement that she intended to adopt the child. In re Adoption of

J.F., 572 A.2d 223, 225 (Pa. Super. 1990).       As such, I agree with the

Majority that the orphans’ court properly granted Father’s petition to

terminate Mother’s parental rights to Child.




1285 (Pa. Super. 2012); see also Petition for Involuntary Termination of
Parental Rights, 6/20/13, ¶ 12.


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