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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J-A07036-14


        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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J-A07036-14


         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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J-A07036-14


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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J-A07036-14


     “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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J-A07036-14


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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