                            [J-59-2016] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


IN RE: ADOPTION OF: M.R.D. AND              :    No. 26 MAP 2016
T.M.D., MINOR CHILDREN                      :
                                            :    Appeal from the Order of the Superior
                                            :    Court at No. 1728 MDA 2013 dated
APPEAL OF: M.C., NATURAL FATHER             :    December 8, 2015 Affirming the Order
                                            :    of the Lycoming County Court of
                                            :    Common Pleas, Orphans Division, at
                                            :    No. 6365, dated August 19, 2013.
                                            :
                                            :    ARGUED: May 10, 2016


                               CONCURRING OPINION


JUSTICE BAER                                                Decided: August 29, 2016
      I concur in the result, as I agree that the Adoption Act, 23 Pa.C.S. §§ 2101-2938,

precludes termination of Father’s parental rights to allow Grandfather to adopt the

children and become a parent together with Mother. I write separately to explain my

analysis because I believe the majority’s test would allow for third-party adoptions not

permitted by the Adoption Act. Additionally, I write to express my disagreement with the

special concurrence’s call upon the legislature to allow for termination of a parent’s

rights when there is no contemplated adoption.

      To me, this case is straight-forward. The question we must answer is whether

Mother and Grandfather may be legal co-parents of the children. The answer to that

question is “no” because the statute allows Mother to be a legal co-parent only with her

spouse. See 23 Pa.C.S. § 2711(a)(3), (d)(1) (requiring a parent to relinquish parental

rights when her child is adopted by another party); 23 Pa.C.S. § 2903 (providing an

exception to the relinquishment requirement “[w]henever a parent consents to the

adoption of his child by his spouse”). As Grandfather is not and never can be Mother’s
spouse, he may never be a legal parent of these children together with Mother.

Accordingly, there can be no adoption, and, therefore, Father’s rights cannot be

terminated because the Adoption Act, supported by wise public policy, mandates that

children maintain two parents.

      In my opinion, the majority places undue emphasis on In re Adoption of R.B.F.,

803 A.2d 1195 (Pa. 2002), which did not involve termination of parental rights, and is

not controlling under the facts of this case. In R.B.F., the children at issue had only one

parent, and the same-sex, long-term committed parties sought to add a second parent.

The R.B.F. court opined that not allowing the couples at issue an opportunity to excuse

the statutory requirement that the biological parent relinquish his rights unless the

adopting party was his spouse seemed absurd because the couples “could have filed

their adoption petitions with the requisite unqualified consent of the legal parent,

including the relinquishment of parental rights, and then seek to adopt their children

jointly.” R.B.F., 803 A.2d at 1203.

      Moreover, R.B.F. did not hold that same-sex couples, in fact, necessarily

established cause to excuse the spousal requirement; but rather held that Section 2901

of the Adoption Act “affords the trial court discretion to determine whether, under the

circumstances of a particular case, cause has been shown to demonstrate why a

particular statutory requirement has not been met.”       R.B.F. at 1197 (discussing 23

Pa.C.S. § 2901). Ultimately, we remanded to the trial court to determine whether the

petitioning same-sex couples could “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

circumstances of each case.” Id. at 1203.




                              [J-59-2016] [MO: Todd, J.] - 2
       In the case before us, distinct from R.B.F., the spousal exception to the

relinquishment requirement is neither fulfilled nor unnecessary because Grandfather

stands in a completely different relationship to Mother than that contemplated by the

statute. Here, the spousal requirement does not create an absurd result, as it did in

R.B.F. where there was no other legal parent and the law then extant prohibited same-

sex couples from marrying. Instead, the spousal requirement in this scenario functions

exactly as the legislature intended: to prevent individuals who are not spouses of a

parent from adopting together with the parent. Thus, Mother and Grandfather cannot

establish cause pursuant to Section 2901 to excuse the requirement that the adopting

party in this situation be Mother’s spouse.

       Accordingly, I respectfully disagree with the majority’s proposition that the

Section 2901 “cause analysis” when a parent seeks to excuse the spousal requirement

is whether the contemplated adoption will “promote a new family unit.” Maj. Op. at 19.

This language is not present in Section 2901 or any other provision in the Adoption Act.

If this were the test, then a parent could terminate the other parent’s rights in favor of a

long-term, live-in partner so long as the parties intended to live together with the

adopted child(ren) as a family. The statute simply does not support this scenario, and

our decision applying Section 2901 expressly admonished against such an

interpretation of the cause analysis. R.B.F., 803 A.2d at 1202 (noting our decision

“does not open the door to unlimited adoptions by legally unrelated adults”).

       Relatedly, I note that the majority equates partners with spouses, so as to imply

that R.B.F. established that long-term committed partners could show cause to excuse

the spousal requirement under these circumstances. See Maj. Op. at 20 (“[R]ather than

being involved in a committed, horizontal relationship such as stepparents or same-sex

partners, Mother and Grandfather share a vertical, parent-child relationship.”). With




                              [J-59-2016] [MO: Todd, J.] - 3
great admiration for my distinguished colleagues, I am constrained to disagree. The

Adoption Act does not excuse the spousal requirement for long-term committed

couples, and neither did R.B.F. R.B.F. simply held that same-sex couples were not

necessarily precluded from adopting as co-parents at a time when they could not marry

and where there was no second legal parent whose rights had to be terminated. As this

case does not present us with a long-term committed partner, and we have never

decided that a long-term committed partner necessarily could excuse the spousal

requirement, I would not speak to the issue.

       We should acknowledge and applaud the wise public policy adopted by our

legislature in the Adoption Act: the ideal family for children is two parents together in an

intact marriage. This may be a traditional notion, but it is rooted in the belief that

children benefit from permanency. See, e.g., 42 Pa.C.S. § 6301 (setting forth one of the

purposes of the Juvenile Act, 42 Pa.C.S. §§ 6301-6375, is “[t]o preserve the unity of the

family whenever possible or to provide another alternative permanent family when the

unity of the family cannot be maintained”); In re T.S.M., 71 A.3d 251, 269 (Pa. 2013)

(acknowledging the “the need [in dependency proceedings] to expedite children’s

placement in permanent, safe, stable, and loving homes”).          Even in a modern age

where non-traditional families may exist, marriage is the best legal proxy of permanency

for children.   It is much more difficult to extricate one’s self from a marriage than

cohabitation. Notwithstanding, my discussion should not be read as disparaging non-

traditional families. Like my colleagues, I appreciate that families of all varieties can and

do flourish. Nevertheless, it is beyond cavil that children are entitled to permanency,

and the best model to ensure that permanency is to have children parented by two

parents in a permanent relationship—a marriage.




                              [J-59-2016] [MO: Todd, J.] - 4
       Because of my strong belief that the Adoption Act strikes the proper balance of

seeking permanency for children and protecting them when necessary, I disagree with

the special concurrence’s call upon the legislature “to revisit the adoption and

relinquishment requirements for termination of parental rights under the [Adoption] Act”

to allow for single parents to terminate the other parent’s rights without the requisite

contemplated adoption.1 Slip. Op. at 2 (Todd, J., specially concurring). The special

concurrence’s request seems to overlook that the interests of children supersede the

interest of parents. In light of the benefits that come with two parents, even when one is

absent, I believe our legislature has adopted a child-focused statute which should not

be changed.

       In my view, the law is loath to leave children with only one parent, as children

derive no benefit from having a parent’s rights terminated, unless a new, committed

parent is ready, willing and able to take that terminated parent’s place. Terminating a

parent’s rights, even one who is currently uninvolved in the child’s life, removes the

child’s ability to inherit from and through that parent as well as the potential of future

emotional and financial support from that parent. Terminating an uninvolved parent’s

rights does not remedy any harm caused by that parent’s absence in the child’s life.

The only benefit of terminating a non-involved parent’s rights without substituting a new

parent is arguably to the involved parent: it removes the involved parent’s fear that the

non-involved parent will have a change of heart and want a relationship with the child

(which may, in the long term, benefit the child); it removes the risk to the involved parent

of having to litigate child custody; it dispels the involved parent’s feeling that his or her

efforts are underappreciated in the eyes of the law, etc.

1
  I note that Mother did not argue this point, and therefore, my discussion is in response
to the special concurrence’s assertions only.



                              [J-59-2016] [MO: Todd, J.] - 5
       The special concurrence’s call upon the legislature to allow termination of

parental rights without substituting a new parent focuses on the involved parent and

contains no discussion of a purported benefit to children: “[I]n today’s society, . . . there

are situations where . . . it is unfair to require a single parent to have a spouse or

partner as a prerequisite to seeking the termination of the rights of the child’s other

legal, but absent, parent.” Slip. Op. at 2. While I respect and appreciate the vitally

important and often-times challenging role of single parents, our laws protecting children

are properly focused on the bests interests of children, rather than unfairness to

parents.

       Moreover, as Justice Wecht aptly articulates in his concurring opinion, allowing

one parent to seek termination of the other without spousal substitution will open the

door for misuse in domestic relations cases. It cannot be denied that emotions run high

in family court, and parents often blame each other for not doing enough for their

children. If we permit the termination of parental rights simply because one parent

accuses the other parent of being a non-involved parent—be it non-payment of child

support, failure to exercise custodial rights, or some other omission—then the courts will

be inundated with requests to deprive children of one of their parents. Respectfully, I

cannot agree that the legislature should create a cause of action that will allow parents

to seek vindication and retribution against each other, at the expense of their children.




                              [J-59-2016] [MO: Todd, J.] - 6
