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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF: S.M.M.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: R.A.R. & S.O.-R.                :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 79 EDA 2018

               Appeal from the Order Entered November 27, 2017
                In the Court of Common Pleas of Chester County
                     Orphans’ Court at No(s): AD-17-0062


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, J:                               FILED MARCH 04, 2019

        R.A.R. and S.O.-R. (“Foster Parents”) appeal from the order entered

November 27, 2017 in the Court of Common Pleas of Chester County, denying

their revised petition for adoption. Foster Parents were in the process of

adopting S.M.M., a special needs child in their care, when S.M.M. tragically

died from complications of his longstanding illnesses. Foster Parents

nevertheless wish to continue with the adoption as planned, to memorialize

S.M.M. as a member of their family. After careful review, we reverse.

        The record reveals the following factual history. S.M.M., a male, was

born in Arizona in August 2013. S.M.M. was diagnosed with Down syndrome,

chronic lung disease, subglottic stenosis, Hirschsprung’s disease, and severe

visual and hearing deficits. His biological parents could not appropriately care

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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for S.M.M.’s health issues and agreed to voluntarily relinquish their parental

rights. The Superior Court of Arizona, Maricopa County, then issued an order

terminating their parental rights to S.M.M.

      Foster Parents are the natural or adoptive parents of ten children.

Several of their adopted children have special needs. Two of the children have

conditions that require 20 hours per day of in-home nursing care. In March of

2017, S.M.M.’s biological parents placed him with Foster Parents. He was three

and a half years old, weighed 21 pounds, and could not stand or even hold his

head up. He was still in an infant car seat.

      A subsequent post-placement report, performed in June 2017, observed

that S.M.M. was doing very well in Foster Parents’ home. The report noted

that S.M.M. sat unassisted, rolled over, army-crawled, pulled himself up to his

knees, and could say “Ma Ma.”

      On September 7, 2017, Foster Parents filed a petition to adopt S.M.M.

The court scheduled a hearing on the petition to adopt for September 25,

2017. Tragically, S.M.M. died prior to the hearing due to the long-term

sequelae of Down syndrome. Notwithstanding S.M.M.’s death, the court

conducted the hearing on the petition to adopt on September 25, 2017, and

Foster Parents both testified. Foster Parents also presented the testimony of

Kate Adams, who performed an adoption home study and drafted post-

placement reports that strongly supported the adoption.

      R.A.R. explained the family’s desire to adopt S.M.M., even after his

death, as follows:

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      [R.A.R.]: It’s -- I mean, he deserves a family. I would love for him
      to have the name of the family, a family that loved him and cared
      about him for the five and a half months that he was with us.

N.T., 9/25/17, at 10.

      Counsel argued the court should permit the adoption, in part, as follows:

      In addition, your Honor, these folks do not stand to benefit
      financially or in any other way from adopting this child, and, in
      fact, by being permitted to adopt this child, this child then gains
      parents. ... He has no parents. The termination of rights has
      occurred in Maricopa County, and here this child was just waiting
      for the D Day, today.

Id., at 13.

      Ms. Adams also testified, recommending that the family be permitted to

adopt S.M.M. See id. Following the hearing, the orphans’ court permitted

Foster Parents to file an amended petition for adoption. However the orphans’

court denied Foster Parents’ amended petition. Foster Parents filed a timely

notice of appeal, and complied with Pa.R.A.P. 1925(b).

      On appeal, Foster Parents raise the following issues:

      1.     Whether the Adoption Act, more specifically, 23 Pa.C.S.[A.
      §] 2901, provides for the adoption of S.M.M., when [R.A.R. and
      S.O.-R.] met all requirements of the law prior to the adoption
      finalization hearing?

      2.    Whether the theory of equitable adoption provides for the
      adoption of a deceased child, when the natural mother of S.M.M.
      relinquished her rights and placed S.M.M. in the care of [R.A.R.
      and S.O.-R.], with the understanding that the [R.A.R. and S.O.-
      R.] would ultimately adopt S.M.M.?

R.A.R. and S.O.-R.’s Brief, at 4.




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      As Foster Parents’ issues involve a question of law, our scope of review

is plenary. See In re Adoption of R.B.F., 803 A.2d 1195, 1199 n.6 (Pa.

2002). Our review must be “focused entirely on the relevant statutory

provisions” of the Adoption Act, 23 Pa.C.S.A. §§ 2101-2910. Id. at 1199. This

Court has declared,

      To effect an adoption the provisions of the Adoption Act must be
      strictly construed. Additionally, adoption is purely a statutory
      right, unknown at common law. Our Courts cannot and should not
      create judicial exceptions where the legislature has not seen fit to
      create such exceptions.

In re Adoption of K.M.W., 718 A.2d 332, 333 (Pa. Super. 1998).

      Section 2901 of the Adoption Act provides, in pertinent part, as

follows:

      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, the investigation required by section
      2535 (relating to investigation) has been completed, the report of
      the intermediary has been filed pursuant to section 2533 (relating
      to report of intermediary) 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.

      We have observed, “[t]he 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 re Adoption of J.D.S., 763

A.2d 867, 861 (Pa. Super. 2000) (citation omitted).




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     Here, the orphans’ court order denying the revised petition for adoption

stated:

     [Foster Parents] filed their original petition for adoption on
     September 7, 2017. They sought to adopt the child known as
     S.M.M. for whom they had been caring. Sadly, S.M.M. died two
     (2) weeks before the hearing on the petition for adoption. [Foster
     Parents] nonetheless wish to continue with the adoption
     proceedings and have asked the court to approve their adoption
     of the now-deceased child. Although the court appreciates [their]
     desire to be recognized as S.M.M.’s parents, as they concede,
     adoption is not founded in common law, but in a statute known as
     the Adoption Act, 23 Pa.C.S.[A.] §2101, et. seq. The Adoption Act,
     however, does not provide for the type of adoption sought here
     and [they] have been unable to provide the court with any
     persuasive authority which would allow the court to act upon their
     request.

Orphans’ Court Final Decree, filed 11/27/17, at 1.

     Further, at the hearing on the petition, the following discussion

occurred:

     THE COURT: You may be seated. So as I was saying earlier today,
     adoptions are the thing I love to do the most. They are the most
     fun.

                                     ***

     THE COURT: And so it’s with a broken heart that we are here on
     what would otherwise be a joyous day. So, [Foster Parents’
     counsel], if you don’t mind, what I thought I would do is address
     the parents.

                                     ***

     THE COURT: So, [Foster Parents’ counsel] sent me a letter -- you
     probably got a copy of it -- and we marked it all up. Between my
     law clerk, who is brilliant, and me, we spent some time last week
     looking at the possibilities as to what the law might allow us to do.
     And, although [Foster Parents’ counsel] made [a] heroic effort, I
     have come out the other end of the tube, and I just don’t think I

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      have the legal authority to grant what you are now asking. If I
      did, I would, but I don’t. I have given [Foster Parents’ counsel]
      some of my legal opinions, and talked about what perhaps could
      happen if you would take an appeal. But at my level, I am a trial
      judge, and this would make new law, and that’s not up to me.
      That’s up to smarter people.

      So I just wanted you to know that I feel for you, and if there was
      any way I thought I could grant what you are asking, I would do
      so.

N.T., Hearing, 9/25/17, at 3-4.

      We first address Foster Parents’ equitable arguments. Foster Parents

contend they “equitably adopted” S.M.M., and that to prevent an adoption

here is contrary to the spirit of the Adoption Act. They contend this Court

should recognize that they equitably adopted S.M.M. through their acts of

caring and nurturing him “as if he were their own flesh and blood.” Appellants’

Brief at 15. Similarly, they argue that permitting their adoption of S.M.M.

comports   with   the   expectations   and   wishes   of   the   citizens   of   the

Commonwealth, and that to prevent the adoption is contrary to the spirit of

the law. Id. at 13.

      Our Supreme Court has observed that the right to adopt is purely

statutory. See In re Adoption of R.B.F., 803 A.2d 1195, 1199 (Pa. 2002).

It has no basis in common law. See id. To the extent that the Adoption Act

precludes the adoption, we cannot expand upon it to allow an adoption where

the Adoption Act does not permit it. See id. (“To effect an adoption, the

legislative provisions of the Adoption Act must be strictly complied with.”)




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      Thus, there can be no “equitable adoption” outside the provisions of the

Act. The court properly recognized that it had no power to deem S.M.M.

already adopted as a matter of equity. Foster Parents’ equitable arguments

do not establish a ground for relief on appeal.

      In the alternative, Foster Parents argue that the Act permits their

posthumous adoption of S.M.M., asserting, “[i]f all legal requirements have

been met, the court may enter a decree of adoption at any time.” 23 Pa.C.S.A.

§ 2901. Foster Parents argue that because all legal requirements – the

termination of the birth parents’ parental rights, the report of intention to

adopt, and the home study report – were completed, the court retained the

ability to enter the decree of adoption “at any time.” Appellant’s Brief, at 13.

      The court does not identify what legal requirement Foster Parents failed

to establish under the Act. However, it is not necessary to engage in a

protracted analysis of the legal requirements under the Act, as we conclude

the Act provides courts a significant amount of discretion in waiving any legal

requirement.

      We acknowledge the statute does not require the court to allow the

adoption. We note that several states do explicitly permit posthumous

adoptions. For instance, both Arkansas and Utah, by statute, provide that, if

a child dies after the child is placed with a prospective “adoptive parent or

parents for the purpose of adoption, the court has authority to enter a final

decree of adoption after the child’s death.” See Ark. Code § 9-9-205, Utah

Code § 78B-6-136.5 (1953) (amended 2012).

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        In contrast, we acknowledge the Act does not contain any explicit

provision for posthumous adoption. However, the plain language of the Act

provides for the waiver of any legal requirement upon a finding of good cause

for the waiver.

        Section 2901’s list of legal requirements for adoption begins with the

phrase, “Unless the court for cause shown determines otherwise[.]” The

Supreme Court of Pennsylvania has observed that “there is no reasonable

construction of the Section 2901 ‘cause shown’ language other than to

conclude it permits a petitioner to demonstrate why, in a particular case, he

or she cannot meet the statutory requirements.” R.B.F., 803 A.2d at 1201-

1202. Thus, the trial court is granted discretion to determine whether a

petitioner has shown sufficient cause to be excused from establishing any legal

requirement. See id.

        Here, the trial court’s rationale does not explicitly acknowledge R.B.F.

or explicitly discuss the issue of cause shown under section 2901. However,

the court’s on the record statement that it would grant the adoption if it

concluded it had the legal authority to do so, see N.T., Hearing, 9/25/17, at

3-4, provides a clear indication of the court’s position on the issue.      We

therefore reverse the order.

        Order reversed. Jurisdiction relinquished.

        Judge Platt did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2019




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