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 dated August 19, 2013
              In the Court of Common Pleas of Lycoming County
                          Orphans' Court at No: 6365


BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ.

OPINION BY STABILE, J.:                         FILED FEBRUARY 13, 2015

      Appellant, M.C. (Father), appeals from the decree of the Court of

Common Pleas of Lycoming County, Orphans’ Court Division (trial court),

which granted the petition filed by Appellees, M.D. (Mother) and M.D.

(Maternal Grandfather), to involuntarily terminate Father’s parental rights to

his twin boys, M.R.D. and T.M.D. (Children), pursuant to Section 2511(a)(1)

and (b) of the Adoption Act (Act).1    For the reasons set forth below, we

reverse.

      On January 29, 2013, Mother and Maternal Grandfather petitioned the

trial court to terminate Father’s parental rights.    In their petition, they

averred that Father, “for a period of [six] years has evidenced a settled



1
  Act of October 15, 1985, P.L. 934, as amended, 23 Pa.C.S. §§ 2101-
2938.
J-A07036-14



purpose of relinquishing his parental claims to [Children], and has refused

and failed to perform parental duties.”    Petition to Terminate, 1/29/13, at

7A. Mother and Maternal Grandfather also averred that “the best interests

and welfare of [Children] shall be served by the termination of [Father’s]

parental rights.” Id. at 7B. They requested that the trial court terminate

Father’s parental rights to “[a]llow [Maternal Grandfather] to adopt

[Children].”2 Id. at 16A. Subsequent to the appointment of a guardian ad

litem for Children, the trial court held a hearing at which Father, Paternal

Grandmother, Mother and Maternal Grandfather testified.

      Following the hearing, on August 19, 2013, the trial court issued a

decree terminating Father’s parental rights to Children.       The trial court

recognized its obligation first to determine the threshold question of whether

the proposed adoption could proceed, as a termination petition filed by one

natural parent against the other is only cognizable if adoption of the child is

foreseeable.   Trial Court Opinion, 8/19/13, at 2.   Citing In re E.M.I., 57

A.3d 1278 (Pa. Super. 2012), the trial court acknowledged it simply could

not rely upon the averments of the termination petition, but rather had to

examine whether termination was in Children’s best interests based upon

the proposed adoption at the time of termination. Citing In re Adoption of

R.B.F., 803 A.2d 1195 (Pa. 2002), the trial court concluded that a non-

spouse (an obvious reference here to Maternal Grandfather) could adopt a

2
  On February 28, 2013, Mother and Maternal Grandfather filed an amended
petition for involuntary termination of parental rights, which largely mirrored
their original petition.


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child with one parent retaining custody “upon good cause shown”.3          Trial

Court Opinion, 8/19/13, at 2. Using E.M.I. as a framework for guiding its

decision, the trial court viewed the cause standard under Section 2901 of the

Act as one requiring it to determine whether Children would be placed in a

new parent-child relationship that would foster the creation of a family unit

and further the best interests of Children.   Id.   In concluding that Mother

demonstrated good cause to permit adoption by the Maternal Grandfather to

proceed, the trial court found:
             Mother and Maternal Grandfather have shared parental
      duties of [Children] since [Children’s] birth on October 14, 2004.
      . . . After leaving the hospital [Children] and Mother returned to
      [Maternal] Grandfather’s home where he took on a regular role
      in diapering and feeding. [Maternal] Grandfather regularly held
      [one of the boys] to help him fall asleep. Maternal Grandfather
      got up with [C]hildren in the night.
             [Children] lived at Maternal Grandfather’s home until they
      were 22 months old. Thereafter, Maternal Grandfather provided
      housing for the boys while they lived in Jersey Shore. Maternal
3
   Although the trial court did not provide the citation for the statutory
reference for “good cause,” we observe that Section 2901 of the Act
provides, in part, “[u]nless the court for cause shown determines otherwise,
no decree of adoption shall be entered unless the natural parent or parents’
rights have been terminated . . . .” See 23 Pa.C.S. § 2901. Section 2903 of
the Act permits retention of parental rights by a parent when adoption of the
child is by the spouse. See 23 Pa.C.S. § 2903. Otherwise, Section
2711(d)(1) requires the termination of a living parent’s rights in order for
adoption of a child under the age of eighteen to proceed. 23 Pa.C.S.
§ 2711(d)(1). In R.B.F., which decided two cases involving same sex
couples wishing to have one partner adopt the other partner’s legal children,
our Supreme Court held that Section 2901 permitted a petitioner to show
cause why in a particular case he or she cannot meet the statutory
requirements under the Act. See R.B.F., 803 A.2d at 1201-1202. Upon a
showing of cause by clear and convincing evidence that the exception sought
clearly outweighs the considerations behind Section 2711(d), a court is
afforded discretion to determine if the adoption should nevertheless be
granted. See id. at 1203. Here, adoption of Children was proposed to be by
Maternal Grandfather, a non-spouse.


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J-A07036-14


      Grandfather continues to provide significantly for [Children]
      through groceries and other assistance. Maternal Grandfather
      has requested certain work hours around his need to be
      available to pick [Children] up after school.            [Maternal]
      Grandfather has picked [Children] up regularly from daycare,
      preschool, kindergarten and first grade. [Maternal] Grandfather
      knows [Children’s] interests and participates in their activities[.]
      This involvement in [Children’s] lives has continued and
      developed at [Children’s] various stages from pretending to be
      pirates to learning football skills. [Maternal] Grandfather stated
      that [Children] depend on him.
            [Maternal] Grandfather has played a regular role in
      decision making in [Children’s] lives. [Maternal] Grandfather
      attended school conferences and has dealt with discipline issues
      as a team with Mother. [Maternal] Grandfather has traveled to
      doctor’s appointments with Mother. [Maternal] Grandfather and
      Mother have co-parented [Children]. [Maternal] Grandfather
      vacations with [Children]. [Maternal] Grandfather assists in
      homework. [Maternal] Grandfather has disciplined [Children].
      [Maternal] Grandfather attends school functions with [Children].
      [Maternal] Grandfather has taken [Children] to his place of
      employment and regularly along on jobs.                  [Maternal]
      Grandfather testified that he “raised” his other children the same
      way he is raising [Children]. [Maternal] Grandfather has been
      [Children’s] de facto father since birth. It is clear from the
      testimony presented that Maternal Grandfather and Mother
      together have raised [Children]. [Maternal] Grandfather’s role in
      [Children’s] lives extends far beyond the role of a typical
      grandparent. [Maternal] Grandfather is clearly one half of the
      parental unit that has raised [Children].                [Maternal]
      Grandfather’s authority, control and influence over [Children] is
      equal to that of Mother.
            Maternal Grandfather has been in the role of parent for
      [Children] on a nearly daily basis and will continue to do.
      Maternal Grandfather expressed concern of providing for
      [Children’s] education and financial future.             [Maternal]
      Grandfather’s present job as an instructor at Pennsylvania
      College of Technology will provide free tuition for the boys if they
      are legally adopted by [Maternal] Grandfather.

Id. at 3-5. Based on these facts, the trial court concluded that “[a]doption

by Maternal Grandfather in this case would simpl[y] memorialize [the] status

quo of [Children’s] lives[, i.e.,] Maternal Grandfather will continue to raise

them as his children.” Id. at 5.




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J-A07036-14



      With the threshold question decided, the trial court next addressed

Mother’s termination petition under Section 2511(a)(1) and (b), and made

the following relevant findings:
      1. [Children] were born on October 14th, 2004, in Williamsport,
      Lycoming County, Pennsylvania. [Children] currently reside with
      [Mother] [in] Montoursville, Lycoming County, Pennsylvania.
      [Mother] . . . was born on May 4th, 1979. Mother is currently
      unmarried. [Maternal Grandfather] . . . was born on April 8th,
      1958. He currently resides [in] South Williamsport, Lycoming
      County, Pennsylvania. Maternal Grandfather is currently married
      to [M.D.], Maternal Grandmother.
      2. . . . [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 [Maternal Grandfather]
      during her pregnancy.
       ....
      9. In October of 2004, Father traveled to Pennsylvania following
      [Children’s] birth for a few days.
      10. Father is not [listed] on [Children’s] birth certificate.
      11. In December of 2004, Father traveled to Pennsylvania to
      visit [Children]. 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
      [Children] such as their first haircuts, a professional photo
      session and shopping trips.
      13. In February 2006, Mother discussed with Father she and
      [Children] traveling to South Dakota to meet [Children’s]
      extended family. Father was not supportive.
      14. In approximately August of 2006, Mother moved from
      Maternal Grandfather’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 [the Jersey Shore address] in
      December of 2006. The envelope was entered into evidence.

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J-A07036-14


      ....
     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 [Children’s] birth until the
     hearing on August 13th, 2013.
     21. At the time of the hearing on the [p]etition for [t]ermination
     of parental rights, Father had not seen [Children] since January
     2006.
     22. At the time of the hearing on the [p]etition for [t]ermination
     of parental rights, Father had not sent [Children] written
     correspondence since January 2007.
     23. Father did not send cards or gifts to [Children] 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 [Children] during the
     first few years of their lives. Father sent Mother money on one
     occasion and bought gifts on his January 2006 visit. Father has
     provided no further support.
     27. Father has sent little more correspondence than six greeting
     cards to [Children] throughout their lives.
     28. In the [sic] 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 [n]otice of the proceeding in January 2013.
     30. Mother filed her [p]etition for [t]ermination of [p]arental
     [r]ights on February 5th, 2013.
     31. [Children] did not learn of the existence of [Father] until the
     summer of 2013.
     32. Mother informed [Children] of the existence of [Father] due
     to the pending termination hearing and the fact that [Children]
     would be speaking with the [g]uardian [a]d [l]item regarding
     [Father].
     33. When Mother, or the [g]uardian [a]d [l]item, discussed
     Father with the children, they listed either “Pa Pa”, Maternal
     Grandfather or “God” as their father.
     34. The children have no bond with Father.

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J-A07036-14


      35. Father’s intention is to become more involved with the
      children and form a relationship with the children.

Id. at 5-9. Based on the foregoing findings, the trial court concluded that as

of the date of the termination petition, “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.” Id. at 10.

Specifically, the trial court held that “[f]rom the Spring of 2007, to the date

of the filing of the [p]etition in February 2013[,] almost six years of the

8-year-old children’s life, Father has failed to show even a passive interest in

his [Children],” and “Father does not have a bond with [Children],” who

embrace only Maternal Grandfather as a “father-figure.” Id. at 11-12.

      Father appealed to this Court.    Following Father’s filing of a concise

statement of errors complained of on appeal, the trial court issued an

opinion in accordance with Pa.R.A.P. 1925(a). For its Rule 1925(a) opinion,

the trial court relied upon its opinion and order of August 19, 2013, except

to correct a typographical error and to address Father’s contention that

termination of his parental rights was not in the best interest of Children,

because Mother and Maternal Grandfather sought only to terminate his

parental rights because he filed for custody.       In addressing this latter

contention, the trial court found:
      Maternal Grandfather testified to adoption being contemplated
      for years before Father contacted Mother. This testimony was
      credible. [See N.T., 8/13/13, at 16-25.] Maternal Grandfather
      testified that he had not proceeded with adoption earlier because
      he “didn’t see a need.” [See id. at 3, 27.] “There was no threat
      of this happening and then all of a sudden it does . . . .” [See
      id. at 3-4, 27.] In the case at hand, termination of parental


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J-A07036-14


     rights only became necessary once Father contacted Mother in
     2012. Maternal [G]randfather, Mother and the minor children
     acted as a family with little involvement from Father from the
     time of the children’s birth on October 14th, 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.

Trial Court Rule 1925(a) Opinion, 10/17/13, at 2.    On    appeal,4    Father

raises several issues for our review.       First, the trial court erred in

determining that Mother showed good cause under Section 2901 of the Act

to proceed with the adoption when adoption by Maternal Grandfather would



4
 The standards governing our review of an order terminating parental rights
are well-settled:
     When reviewing an appeal from a decree terminating parental
     rights, we are limited to determining whether the decision of the
     trial court is supported by competent evidence. Absent an abuse
     of discretion, an error of law, or insufficient evidentiary support
     for the trial court’s decision, the decree must stand. Where a
     trial court has granted a petition to involuntarily terminate
     parental rights, this Court must accord the hearing judge’s
     decision the same deference that we would give to a jury
     verdict. We must employ a broad, comprehensive review of the
     record in order to determine whether the trial court’s decision is
     supported by competent evidence.
     The burden is upon the petitioning person or agency to prove by
     clear and convincing evidence that its asserted grounds for
     seeking the termination of parental rights are valid. Moreover,
     we have explained:
            The standard of clear and convincing evidence is
            defined as testimony that is so ‘clear, direct, weighty
            and convincing as to enable the trier of fact to come
            to a clear conviction, without hesitance, of the truth
            of the precise facts in issue.’
     The trial court is free to make all credibility determinations, and
     may believe all, part, or none of the evidence presented. If the
     findings of the trial court are supported by competent evidence,
     we will affirm even if the record could also support the opposite
     result.
In re T.M.T., 64 A.3d 1119, 1124 (Pa. Super. 2013) (citations omitted).


                                    -8-
J-A07036-14


not create a new, genuine, parent-child relationship and would not foster the

creation of a new family unit. Second, the trial court erred in terminating

Father’s parental rights under Section 2511(a)(1) based upon its finding

Father evidenced a settled purpose of relinquishing his parental rights and

failed to perform his parental duties.         Lastly, the trial court abused its

discretion in terminating Father’s parental rights under Section 2511(b) of

the Act because there was insufficient evidence to demonstrate that

Children’s best interest would be advanced by the proposed adoption by

Maternal Grandfather.

      In support of his first issue, Father relates that Mother moved back

home with her family when pregnant and remained there with Children for

the first two years of Children’s lives.       Father’s Brief at 15-16.    Mother

moved with Children to a rental property owned by Maternal Grandparents in

August 2006. Id. Thereafter, in 2010, Mother and Children moved to their

current residence, which Mother is purchasing. Id. at 18. Mother pays her

mortgage, utilities and other home expenses, but Maternal Grandfather

helps financially by providing food on occasion. Id. Maternal Grandfather

“picks up the slack” by purchasing items like sports equipment for Children.

Id.   Maternal Grandfather and Maternal Grandmother live in an intact

relationship in the same household.        Id. at 24.     Father maintains that

because Mother and Children live apart from Maternal Grandfather, and

Maternal   Grandfather   lives   with    and    remains   married   to    Maternal



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J-A07036-14


Grandmother, good cause was not established under Section 2901 of the

Act, as no new, genuine, parent-child relationship and creation of a new

family unit will exist to permit the proposed adoption to proceed.

        This Court long has held that the complete and irrevocable termination

of parental rights is one of the most serious and severe steps a court can

take, carrying with it great emotional impact for the parent and the children.

In re Bowman, 647 A.2d 217, 218-19 (Pa. Super. 1994), aff’d by an

equally divided court, 666 A.2d 274 (Pa. 1995).              For one parent to

petition for the involuntary termination of another parent’s paternal rights,

the petitioning parent must meet the requirements of Section 2512 of the

Act.5    Under Section 2512, a petition to involuntarily terminate a natural

parent’s rights filed by an individual (as opposed to an agency) is only

cognizable when it is accompanied by a prospective stepparent’s intention to

adopt the child. In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2011)

5
    Section 2512 of the Act provides, in relevant part:
        (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.
                ....
        (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. § 2512.


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J-A07036-14


(plurality); In re Adoption of J.F., 572 A.2d 223, 225 (Pa. Super. 1990)

(noting “a parent may not petition to terminate the parental rights of the

other parent unless it is established that there is an adoption contemplated

by the spouse of the petitioner”). Thus, in a private termination petition, the

petitioning parent must identify a qualified person willing and able to adopt

the children under Section 2512(b) of the Act if termination of the other

parent’s rights are to be granted.6 E.M.I., 57 A.3d at 1287. If a parent files

a petition to terminate the other parent’s rights to their child or children,

involuntary termination is not permitted when no adoption or “new parent-

child relationship” is contemplated, because the sole purpose of termination

is to further adoption and establish a “new family unit.” L.J.B., 18 A.3d at

1108 (noting “where a prospective stepparent, due to separation or pending

divorce with the other natural parent, will no longer complete the family

unit, the termination of a natural parent’s rights due to abandonment must

be vacated”). As our Supreme Court explained:

      [T]he legislative purpose behind permitting involuntary
      termination of parental rights is not to punish an ineffective or
      negligent parent, or provide a means for changing the surname
      of the child. Rather, the purpose of involuntary termination of
      parental rights is to dispense with the need for parental consent
      to an adoption when, by choice or neglect, a parent has failed to
      meet the continuing needs of the child.         Once a natural
      parent’s rights are terminated, the concomitant adoption
      fosters a new parent-child relationship. Such a rule is
      sound because termination of the natural parent’s rights
      prior to adoption and allowance of stepparent adoption is

6
   A mere averment of a contemplated adoption, however, could “be
sufficient to obtain a hearing on the termination petition.” E.M.I., 57 A.3d
at 1287.


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J-A07036-14


      for purposes of protecting the integrity and stability of the
      new family unit. . . . Thus, where no new parent-child
      relationship is contemplated, the involuntary termination of
      parent rights is not permitted under the Adoption Act. (Emphasis
      added).

Id. (internal quotation marks and citation omitted).7     In In re T.R., 465

A.2d 642 (Pa. 1983), our Supreme Court determined that trial courts “should

consider, and not merely accept on its face, [the prospective adoptive

parent’s] and [petitioning biological parent’s] Declaration of Intent to Adopt,

so 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, may properly be determined.” Id. at

644 n.10. In fact, the court has stated that “the public policy behind this

requirement is simple: Pennsylvania will not countenance state-created

orphans.” L.J.B., 18 A.3d at 1108 n.11. The court further noted:
      [T]he idea that the state should create orphans is inimical to our
      family-centered society.    Moreover, the creation of parental
      termination absent stepparent adoption would provide parents
      with a new, and in our view dangerous, tactic in heated custody
      disputes; indeed, one can imagine routine cross-petitions for
      termination as part of custody battles under the Dissent’s
      suggestion that termination may occur without a ready
      stepparent.

Id. at 1110. Thus, as here, when a biological parent seeks to terminate the

parental rights of the other biological parent, the parent seeking termination

must produce a qualified adoptive parent so that the contemplated adoption




7
  It has long been held that the Act is not intended to be used as a sword
against a parent. This point of law originated in a case decided by our
Supreme Court in 1977. See In re B.E., 377 A.2d 153, 156 (Pa. 1977).


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J-A07036-14



will (1) establish a new parent-child relationship and (2) serve to protect the

integrity and stability of a new family unit.

      The trial court found that good cause existed under Section 2901 to

permit Maternal Grandfather, a non-spouse, to adopt Children before

proceeding to terminate Father’s parental rights under Section 2511(a)(1)

and (b). In so finding, the trial court failed to consider the purpose and

necessity behind Section 2512 of the Act. As explained above, a biological

parent is permitted only to avail him or herself of the benefits of the

involuntary termination provisions of the Act when the proposed termination

of the other biological parent’s rights would lead to a child’s adoption by an

individual with whom the child shares a parent-child relationship and the

adoption fosters a new family unit for the child. Conspicuously absent from

the trial court’s decision is a determination that Maternal Grandfather’s

adoption of Children would create a new family unit. Moreover, our review

of the record and the findings made by the trial court reveal no support for

such a finding.

      First, the trial court found (and it is undisputed by the parties) that

Maternal Grandfather is married to Maternal Grandmother.              Maternal

Grandmother did not testify at the termination hearing, and neither Mother

nor Father provided any evidence regarding her relationship with Children or

her position with respect to the proposed adoption.      Although we cannot

speculate about what a record might reveal as to Maternal Grandmother’s

relationship with Children, the absence of any consideration of this


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J-A07036-14



relationship, given the intact marriage between the maternal grandparents,

is disconcerting.    We would expect, given the arrangement proposed

(Maternal Grandfather as parent to their daughter’s children and remaining

as spouse to Maternal Grandmother), the impact of a party’s other

household members would be a part of the determination of whether cause

has been shown to permit the proposed adoption to proceed forward.

      We find support for this proposition in the related area of custody.

When awarding custody, the trial court always must consider the impact of

other household members before an award of even partial custody may be

made. See 23 Pa.C.S. § 5328(a). It is unreasonable to conclude that a trial

court must employ a higher level of scrutiny of a person’s household in

deciding whether to grant the party partial custody of a child than it would

when deciding whether to permit the party to adopt a child.

      The record also reflects that Maternal Grandfather resides with

Maternal Grandmother, while Mother lives alone with Children.         There is

nothing in the record to suggest that Maternal Grandfather and Mother

planned to cohabitate. While this may not necessarily prohibit a finding of

the creation of a new family unit, it is a factor to consider. See, e.g., In re

Adoption of J.D.S., 763 A.2d 867, 872 (Pa. Super. 2000) (“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.”).




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J-A07036-14



      Finally, we fail to see how Maternal Grandfather’s adoption of Children

would create a new family unit, as they are already members of the same

family.   Unlike in cases of stepparent adoptions or unmarried romantic

partner adoptions, wherein the prospective adoptive parent shares no legal

relationship with the child, Maternal Grandfather is Children’s blood relative.8

He is their mother’s father.    Permitting Maternal Grandfather to become

Children’s adoptive father would not create a new family unit; it would

create confusion.     To illustrate, Maternal Grandfather would become

Children’s father.    Mother, therefore, would become Children’s sister.

Although not entirely clear, it appears that this would make Maternal

Grandmother Children’s stepmother. Furthermore, should Mother choose to

remarry, nothing in the Act compels Maternal Grandfather, now father, to

terminate his parental rights in favor of Mother’s new spouse.            Upon

remarriage, Children’s parents would not be Mother and her spouse, but

would remain Mother and Maternal Grandfather, with Mother’s new spouse

unable to legally form a new family unit.

      It is apparent from Maternal Grandfather’s uncontradicted testimony

that none of these practical ramifications was considered when Mother and

Maternal Grandfather decided to file their petition to terminate Father’s


8
  There is strong public policy against an arrangement whereby a woman’s
father may be considered the equivalent of a spouse under Pennsylvania
law. It is hard to envision that the Legislature intended to permit fathers
and their daughters to co-parent when the Marriage Law expressly prohibits
a man from marrying his daughter and a woman from marrying her father.
See 23 Pa.C.S. § 1304(e).


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J-A07036-14



parental rights to Children. Even though Maternal Grandfather expressed his

desire to see his daughter settle down at some point in another relationship,

he had not thought about how that would affect his role with Children if he

were allowed to adopt them at this time. N.T, 8/13/13, at 23-26.

      Maternal Grandfather’s expressed desire for Mother to remarry and the

continuing role of Maternal Grandfather as a parent to Children would create

unnecessary confusion in Children’s lives.      Conflict is inherent in an

arrangement where a grandparent with parental rights may choose to parent

differently than the married couple with whom the children presumably

would be living.

      Moreover, we do not believe the Legislature intended such results

when it enacted the cause provision under Section 2901 of the Act. It is one

thing to argue and prove by clear and convincing evidence the equivalent of

or lack of necessity for a statutory provision where the parties can comply

with the purpose of the Act, but not the letter.   See R.B.F., 803 A.2d at

1203 (remanding for evidentiary hearings to determine whether the

appellants, same sex couples who, at the time, were not permitted to marry

in Pennsylvania, “can demonstrate by clear and convincing evidence, cause

as to whether the purpose of Section 2711(d)’s relinquishment of parental

rights requirement will be otherwise fulfilled or is unnecessary under

the particular facts of each case”) (emphasis added).    It is quite another

thing to eradicate a statutory provision under the guise of cause where both

the purpose and the letter of the statute are to be ignored and the exception


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allowed to swallow the rule. See id. at 1202 (stating that the decision “does

not open the door to unlimited adoptions by legally unrelated adults”);

L.J.B., 18 A.3d at 1108 (stating that the purpose of an adoption is to

“protect[] the integrity and stability of the new family unit”). Although the

discretion given to courts under Section 2901 is useful to permit an

acceptable substitute for a legislative requirement, this discretion is not so

broad as to permit a court to rewrite a statute and entirely upend and

redefine the basic purpose of the Act as envisioned by the Legislature.

      We also find that Mother’s and Maternal Grandfather’s reason for filing

their involuntary termination and adoption petition does not comport with

the purpose of the Act not to use a termination to punish an ineffective or

negligent parent. Relying upon Maternal Grandfather’s testimony, the trial

court found that the principal purpose for the filing of the involuntary

termination and adoption petition was to respond to Father seeking custody

of Children after a long period of parental non-involvement.         Maternal

Grandfather testified that he had previously contemplated adopting Children,

but did not proceed because he “didn’t see a need.” N.T., 8/13/13, at 26-

27.   The “need” only arose once Father filed a petition for custody of

Children, which, according to Maternal Grandfather, “threatened [to turn

Children’s worlds] upside down.”       Id. at 27.      Using an involuntary

termination petition as a defensive mechanism against a parent seeking

custody of his or her children does not comport with the purposes of the




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Act.9   L.J.B., supra; B.E., supra.     Accordingly, we are compelled to hold

that the trial court abused its discretion and erred as a matter of law by

concluding cause was demonstrated to permit the adoption of Children by

Maternal Grandfather and by considering the petition for involuntary

termination of Father’s parental rights under Section 2511(a)(1) and (b), as

no new family unit was to be created.10

        In the course of our analysis, we did not find it necessary to address,

as a general proposition, whether a maternal grandfather may adopt his

daughter’s child and serve as a parent to that child with his own daughter.

Our holding stops short of this issue because of our conclusion that no new

family unit was being created by the proposed adoption in this case.




9
    We disagree with the learned Dissent that we have reweighed the
evidence regarding Mother and Maternal Grandfather’s motives for filing
their petition to terminate Father’s parental rights. We base our observation
that the petition did not comport with the purposes of the Act solely upon
the trial court’s findings in its Rule 1925(a) opinion. We do not separately
characterize this action by Mother and Maternal Grandfather as retaliatory or
punitive in a way that is at odds with the trial court’s fact-finding. To the
contrary, the trial court’s finding that the termination petition was filed as a
reaction to Father’s custody petition is unequivocal on the face of the trial
court’s Rule 1925(a) opinion. Regardless of the adjective attached to the
parties’ action, it is clear that Mother and Maternal Grandfather’s action
conflicts with the principle that the termination provisions of the Act are not
meant to be used as defensive mechanisms to custody petitions.
10
   We would not take issue with the trial court’s findings under Section
2511(a)(1) and (b) if the question of involuntary termination could be
reached by the trial court. Because the trial court erred in finding cause on
the threshold question of whether the involuntary petition proposed a
termination and adoption to create a new family unit, any consideration of
Section 2511(a)(1) and (b) was premature.


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Decisions regarding a finding of cause must be made on a case-by-case

basis. See R.B.F., 803 A.2d at 1202.

      Accordingly, we disagree with the learned Dissent that the decision in

In re Adoption of J.M., 991 A.2d 321 (Pa. Super. 2010), compels the

opposite conclusion in this case. Like the case at bar, J.M. involved a

petition filed by the child’s mother and maternal grandfather to involuntarily

terminate the parental rights of a father and proposing that the maternal

grandfather adopt the child. The trial court did not consider the preliminary

requirement of whether the mother was able to show cause why she was

unable to meet the statutory requirements for the entry of an adoption

decree. Rather, the trial court found that the mother was unable to satisfy

her burden of proving that termination of the father’s parental rights best

served the child’s needs and welfare pursuant to Section 2511(b) of the Act,

as the contemplated adoption by the maternal grandfather “would not create

a traditional, nuclear family” and “considered cohabitation the sine qua non

of the family unit.” Id. at 325. Relying upon our Supreme Court’s decision

in R.B.F., the J.M. panel found this was error.    It did not, as the Dissent

suggests, find that “[a] non-spouse adoptive nominee can be a child’s

maternal grandfather.” Dis. Op. at 12. Instead, this Court simply remanded

the case to the trial court to give the mother the opportunity “to show cause

pursuant to [S]ection 2901 of the Adoption Act why the proposed adoption

should not proceed.”    J.M., 991, A.2d at 327.     The panel expressed no

opinion either way of whether a grandparent was in fact able to serve as an


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adoptive resource for a grandchild when the rights of a parent of that child

remained intact.

        We also respectfully disagree with the learned Dissent’s assertion that,

in J.M., this Court expressly rejected the notion that cohabitation was a

necessary component of a “new family” unit, and that J.M. is both

precedential and instructive in this case. The trial court in J.M. found that

adoption by the maternal grandfather would not create a new family unit

given    that   mother        and   maternal     grandfather   maintained   separate

households      since   the    child’s   birth   and   maternal   grandfather   never

maintained physical custody of child.              This Court, however, expressly

declined to address whether the record supported these findings by the trial

court, and hence, whether a new family unit was being created, because this

Court felt it necessary first to “confront whether prevailing Pennsylvania law

permits Maternal Grandfather to formally step into the void Father created.”

J.M., 991 A.2d at 325-26.           Accordingly, a remand was ordered in J.M to

permit the petitioners an opportunity to show cause under Section 2901 of

the Act why the proposed adoption should proceed.                  This Court never

addressed or resolved the issue whether cohabitation was a necessary

component to a new family unit.

        Likewise, we do not conclude or state anywhere in our opinion

“cohabitation” is per se an indispensable element to a “family unit” analysis.

There was no need instantly to address that question in light of the totality

of facts that support our conclusion. As stated, it is the lack of cohabitation,


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or any intent to do so, between Mother and Maternal Grandfather, and

Maternal Grandfather’s intact marriage to and separate residence with

Maternal Grandmother that led us to the legal conclusion that no new family

unit was to be created by the proposed adoption in this case.

      Nor do we find the Dissent’s reference to Section 2312 of the Act to be

persuasive.    Section 2312 provides the general statement that “[a]ny

individual may become an adopting parent.”        23 Pa.C.S. § 2312.     The

Dissent would read this provision as all-encompassing, so as to eradicate all

other statutory requirements, in particular, the more specific statutory

requirements for adoption under the Act, including the spousal requirement

under Section 2903. All provisions of the Act, however, must be read in pari

materia.   See 1 Pa. C.S. § 1932(a), (b) (“[S]tatutes are in pari materia

when they relate to the same . . . things. . . . [and] shall be construed

together, if possible, as one statute.”).       Furthermore, the Statutory

Construction Act makes clear that to the extent two statutory provisions are

in conflict and cannot be construed to give effect to both, the more specific

provision will control.   See 1 Pa.C.S. § 1933.    Nonetheless, in the same

breath the Dissent also acknowledges the “any individual” language under

Section 2312 is subject to “good cause shown” under Section 2901 of the

Act, thereby contradicting the all-encompassing attribute the Dissent seeks

to ascribe to Section 2312 for purposes of this matter.

      The Dissent properly acknowledges that a termination petition first

must meet threshold requirements under the Act before a court may


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proceed to a Section 2511(a) and (b) analysis.          The Dissent conducts a

Section 2511(a) and (b) analysis even though it expresses agreement with

the threshold proposition that the “singular concern” of the Act is to

establish a new “parent-child relationship,” and that termination of a natural

parent’s rights and allowance of adoption serves to protect the integrity of

the “new family unit” and stability for the adoptee.               It is with the

preservation of these threshold and fundamental purposes underlying the

Act where we part paths with the Dissent.

        In closing, we emphasize that we do not today decide anything more

beyond our conclusion that the record does not demonstrate by clear and

convincing evidence that Maternal Grandfather’s proposed adoption of

Children will establish a new family unit, a necessary prerequisite in this

case to the consideration of the merits of a petition to involuntarily

terminate parental rights pursuant to Section 2511(a)(1) and (b).            We do

not intend to minimize in any manner the substantial contributions and

support provided by Maternal Grandfather to his daughter and to his

grandchildren. Maternal Grandfather has offered the type of emotional and

financial support much needed and often times typical of extended family,

especially when one finds a child in need or not fully prepared to address the

challenges of having to parent children alone.

        We also are fully cognizant of the custody rights possessed by

Maternal    Grandfather   under   the     Custody   Act11   with   respect   to   his

11
     Act of November 23, 2010, P.L. 1106, 23 Pa.C.S. §§ 5321-5340.


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grandchildren.     Although termination of parental rights and adoption of

Children cannot be sanctioned as proposed in this case, the trial court

nonetheless has significant authority and discretion under the Custody Act to

enter    appropriate   custody   orders    vis-à-vis   Father   and/or   Maternal

Grandfather in Children’s best interests.      We, however, do not have the

authority to redefine and rewrite the many provisions of the Adoption Act

that would be required to grant the termination and adoption sought in this

case. Understandably, we reject the Dissent’s criticism that our decision is

the product of a rigid mindset that ignores evolving societal norms. It is not

the role of this Court to establish societal norms. Barring a change in the

law by our Legislature or an express reinterpretation of existing statutes by

our Supreme Court, we are constrained to reverse, based on an abuse of

discretion, the trial court’s decree terminating Father’s parental rights and

approving the adoption of Children by Maternal Grandfather.

        Decree reversed. Jurisdiction relinquished.

        Judge Donohue joins the Opinion.

        President Judge Gantman files a Dissenting Opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2015




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