J-A26006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.M.                                               IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                     v.

S.A.

                          Appellant                   No. 777 MDA 2017


                 Appeal from the Order Entered April 4, 2017
               In the Court of Common Pleas of Sullivan County
                       Civil Division at No(s): 2011-243


BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 18, 2018

       S.A. (“Father”) appeals from the April 4, 2017 order entered in the Court

of Common Pleas of Sullivan County which granted the petition filed by C.M.

(“Mother”) to involuntarily terminate his parental rights to their minor son,

C.A.   As evidenced by the foregoing caption that is more appropriate in

domestic relations court than orphans’ court, the genesis of the instant appeal

lies in custody litigation that Mother initiated against Father on October 18,

2011. We reverse.

       C.A. was born during August of 2011, in Philadelphia, Pennsylvania, as

a result of Mother’s intermittent relationship with Father. N.T., 2/23/17, at 8,

10. Father was present during birth, but the family never resided together.

Id. at 11-12. Approximately one month after her son’s birth, Mother moved
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with C.A. to her parents’ home in Sullivan County, Pennsylvania, and initiated

the underlying custody litigation.   Id. at 12-13.   The trial court awarded

Mother primary physical and legal custody of C.A. after Father failed to attend

a preliminary custody conference.    She has exercised sole custody of C.A.

throughout his life.   During May 2014 and July 2015, Father filed two

unsuccessful motions to modify the 2011 custody order.         The trial court

dismissed the 2014 petition after Father failed to attend the ensuing custody

conference. Father’s later attempt was derailed on September 16, 2015, when

Mother filed a petition to terminate his parental rights pursuant to 23 Pa.C.S.

§ 2511(a)(1) and (a)(2).

      In order to comply with § 2512(b), which has been interpreted as

requiring a petitioning parent to identify the person with a present intention

to adopt, Mother averred that her father, Charles Murray (“Grandfather”)

intended to adopt C.A. upon the termination of Father’s parental rights. The

termination hearing was held on February 23, 2017.         Mother testified in

support of the petition for termination and proffered one witness: Grandfather,

who confirmed his intent to adopt C.A. if Father’s parental rights were

terminated.   Grandfather, who C.A. refers to as “Pop Pop,” has supported

Mother and C.A. since 2012. N.T., 2/23/17, at 21, 59. During her testimony,

Mother explained that she and Father rarely spoke to one another during the

first three years after C.A.’s birth and that, while Father knew Grandfather’s

address, he remained absent from his son’s life. Id. at 13, 18. She continued

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that, except for a few visits prior to their relocation to Sullivan County, Father

never visited with C.A., sent gifts, or provided Mother with financial support.

Id. at 15, 20. Mother attested that, although she did not prohibit Father from

visiting C.A. or interfere in the father-son relationship, Father neglected to

interact with C.A., other than the few visits that occurred during 2012. Id.

16, 18, 19.

      As it relates to the dispositive issues in this case, Grandfather testified

that the primary reason for desiring to adopt C.A. was to change the child’s

surname, which the family had already altered informally. Id. at 60. During

cross-examination, Grandfather added that he also intended for the adoption

to formally ratify the fact that C.A. was part of his family. He explained, “I

figure him part of the family and that’s where he belongs, with us.” Id. at 61.

Noting the fact that he currently was C.A.’s de facto parent, Grandfather

added, “I’ve done the same for him as I’ve done for my own children and I

look at him as being one of them also.” Id. at 62. Grandfather did not discuss

the perspective of his wife (“Grandmother”) on the proposed adoption, and

Mother neglected to adduce any evidence on that topic. Father countered with

testimony concerning the barriers that he claimed Mother erected to interfere

with his relationship with C.A.       Following the close of evidence, and

confirmation of Father’s paternity, the trial court granted Mother’s petition to

terminate Father’s parental rights.




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      Father timely filed a notice of appeal along with a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

He raises the following issues for our review:

            A. Whether the [trial court] committed an error of law
      and/or an abuse of discretion by failing to adequately consider
      [F]ather’s evidence of his continued interest and attempts to have
      a relationship with the minor child and [M]other's efforts to keep
      him from maintaining a relationship with the minor child.

             B. Whether the [trial court] committed an error of law
      and/or abuse of discretion and ignored the evidence of record in
      erroneously finding that [F]ather's conduct for a period of at least
      six (6) months immediately preceding the filing of [M]other's
      petition has evidenced a settled purpose of relinquishing his
      parental claim to the minor child and/or has refused or failed to
      perform his parental duties, pursuant to 23 Pa.C.S. § 2511(a)(1).

            C. Whether the [trial court] committed an error of law
      and/or abuse of discretion and ignored the evidence of record in
      erroneously finding that the repeated and continued incapacity,
      abuse, neglect or refusal of the father has caused the minor child
      to be without essential parental care, control or subsistence
      necessary for his physical or mental well-being and the conditions
      and causes of the incapacity, abuse, neglect or refusal cannot or
      will not be remedied by [F]ather, pursuant to 23 Pa.C.S. §
      2511(a)(2).

Father’s brief at 2-3. The court-appointed counsel for C.A. neglected to file a

brief either supporting or contesting the termination of Father’s parental rights

pursuant to § 2511(a)(1).

      Our standard of review is well settled.

      The standard of review in termination of parental rights cases
      requires appellate courts to accept the findings of fact and
      credibility determinations of the trial court if they are supported
      by the record. If the factual findings are supported, appellate
      courts review to determine if the trial court made an error of law

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      or abused its discretion. A decision may be reversed for an abuse
      of   discretion    only   upon     demonstration      of    manifest
      unreasonableness, partiality, prejudice, bias, or ill-will. The trial
      court’s decision, however, should not be reversed merely because
      the record would support a different result. We have previously
      emphasized our deference to trial courts that often have first-hand
      observations of the parties spanning multiple hearings.

In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks

omitted).

      Involuntary termination of parental rights is governed by § 2511 of the

Adoption Act, 23 Pa.C.S. §§ 2101-2938. The sole purpose of the involuntary

termination of parental rights is to facilitate adoption. In re B.E., 377 A.2d

153, 155 (Pa. 1977).      The measure is neither punitive nor a means for

changing a child’s surname. Id. As the party petitioning for termination of

parental rights, Mother was required to “prove the statutory criteria for that

termination by at least clear and convincing evidence.” In re T.R., 465 A.2d

642, 644 (Pa. 1983). 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 hesitancy, of the truth of the precise

facts in issue.” Matter of Sylvester, 555 A.2d 1202, 1203–04 (Pa. 1989).

Finally, “because adoption is a statutory right, we note that the parent seeking

termination must strictly comply with all pertinent provisions of the Adoption

Act in order for the adoption to be valid.” In re Adoption of M.R.D., 145

A.3d 1117, 1120 (Pa.Super. 2016).        Nevertheless, as our Supreme Court

recognized in In re Adoption of M.R.D., supra, the trial court has discretion

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pursuant to 23 Pa.C.S. § 2901, to excuse a party’s inability to satisfy the

statutory requirements for adoption upon cause shown.1

       At the outset, we observe that Mother’s petition to terminate Father’s

parental rights is not cognizable pursuant to § 2512(a) and (b) because, to

the extent that Mother retains her parental rights, the proposed cessation of

Father’s parental rights was not in anticipation of a valid adoption decree that

would establish a new parent-child relationship.      Hence, for the reasons

discussed infra, the order terminating Father’s parental rights cannot stand.

       Pursuant to § 2512(b), a private petition to involuntarily terminate a

spouse’s parental rights is cognizable only if the averred adoption is

foreseeable. In re E.M.I., 57 A.3d 1278, 1287 (Pa.Super. 2012). As our

High Court observed forty years ago in discussing 1 P.S. § 312, the

predecessor to § 2512, “a parent may bring a petition for termination of the

parental rights of the other parent only when adoption is contemplated.” In

re B.E., supra at 155; see also In re Adoption of M.R.D., supra at 1120

(involuntary termination of parental rights is not permitted if no new parental-


____________________________________________


1  The Adoption Act provides in pertinent part, “Unless the court for cause
shown determines otherwise, no decree of adoption shall be entered unless
. . . all other legal requirements have been met.” 23 Pa.C.S. § 2901. As
noted in the body of the memorandum, our Supreme Court interprets this
provision as permitting “an adoption petition in circumstances where . . . the
party seeking adoption is unable to meet the statutory requirements for
adoption, but has demonstrated cause for his or her noncompliance with those
requirements.” In re Adoption of M.R.D., 145 A.3d 1117, 1121 (Pa.Super.
2016).

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child relationship is contemplated). Later, in In re T.R., 465 A.2d 642, 644

n.10 (Pa. 1983), the Supreme Court observed that, the “singular concern of

the Adoption Act” is to “establish a new ‘parent-child relationship.’”

Accordingly, it reasoned that the trial court is required to “consider, and not

merely accept on its face,” the putative adoptive parent’s declaration of intent

to adopt in order to confirm that the purpose of the involuntary termination

of parental rights is genuine, i.e., to establish a new parent-child relationship.

Id. Moreover, our High Court’s treatment of § 2903 prohibits grandparents

from adopting their grandchildren unless the parental rights of both parents

are terminated, at least not without a demonstration of “cause shown”

pursuant to 23 Pa.C.S. § 2901, which the trial court neglected to perform

herein. In re Adoption of M.R.D., supra at 1120-1121.

      Instantly, Mother’s petition averred that Grandfather would adopt C.A.

upon the involuntary termination of Father’s parental rights.         During the

evidentiary hearing, she supported that averment with Grandfather’s

testimony regarding his intention to adopt C.A. and the concomitant reasons

for that objective. In entering its termination decree, the trial court accepted

this declaration on its face and ostensibly determined that Mother’s averments

and attendant evidence regarding the anticipated adoption satisfied § 2512(a)

and (b) and the related case law. As we discuss infra, the trial court’s implicit

conclusion that Grandfather’s anticipated adoption of C.A., and by necessity

the termination of Father’s parental rights, could proceed without the § 2903

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analysis justifying why Mother should not be required to relinquish her rights

is reversible error. Id. at 1129-1130.

      Father does not raise this issue specifically. Indeed, as demonstrated

by our reiteration of the statement of questions presented, he challenges the

sufficiency of the evidence that Mother adduced to satisfy her burden of proof

under § 2511(a)(1) and (a)(2). Nevertheless, in addressing the sufficiency of

Mother’s evidence, we must necessarily confront the procedural posture of the

case in order to determine whether the evidence Mother adduced was, in fact,

sufficient in parental termination actions between spouses. In re Adoption

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

      In In re Adoption of J.D.S., we determined that a petition for the

involuntary termination of a father’s parental rights was not cognizable

because the prospective adoption by an estranged spouse was unlikely. Like

Father in the case at bar, the father therein did not expressly challenge the

procedural status of the involuntary termination case. Indeed, identical to

Father herein, the father challenged the sufficiency of evidence underlying the

trial court’s findings under § 2511(a) and (b), and he leveled two procedural

claims that are not relevant to our discussion. In confronting what this Court

found to be the dispositive issue concerning the impossibility of the

stepfather’s proposed adoption following the collapse of his relationship with

the children’s mother, we deemed the legitimacy of the proposed adoption to

be an essential component of the father’s underlying challenge to the

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sufficiency of the evidence. We explained our rationale as follows: “While the

evidence could establish that father's conduct, or lack thereof, indicates ‘a

settled purpose of relinquishing parental claim to a child or has refused or

failed to perform parental duties,’ 23 Pa.C.S.A. § 2511(a)(1), this evidence

becomes applicable only if the procedural status of the case is such that

termination is permissible.”     Id. at 870-871.    As the petitioners could not

satisfy the statutory prerequisite for terminating the father’s rights, i.e., a

valid adoption by the stepfather, we vacated the order terminating the father’s

parental rights.

      The instant case aligns with In re Adoption of J.D.S. Comparable to

the petitioners’ evidence supporting the statutory grounds for termination in

that case, the evidence that Mother adduced herein regarding Father’s

absence becomes relevant only if the Adoption Act can tolerate the purported

adoption of C.A. by Grandfather.        Therefore, as we determined in In re

Adoption of J.D.S., supra, in order to determine the sufficiency of Mother’s

evidence for termination under § 2511(a)(1), we must first confront whether

termination of parental rights is permissible. Stated another way, the validity

of the anticipated adoption is a prerequisite for adducing sufficient evidence

for terminating parental rights pursuant to § 2511. See In re Adoption of

J.D.S.,   supra    at   872   (since   stepparent   adoption   was   defeated   by

contemplated divorce, petitioner could not meet burden of establishing

statutory prerequisite for termination of parental rights). Thus, to the extent

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that Grandfather’s anticipated adoption is invalid, Mother cannot sustain her

burden of proving the grounds for the involuntary termination of Father’s

parental rights.

      Next, we address the legitimacy of Grandfather’s proposed adoption of

C.A. under the circumstances of this case. Our High Court in In re Adoption

of M.R.D., supra, recently confronted a similar scenario involving the

termination of parental rights to facilitate a prospective adoption by a

grandparent when the other parent retained her parental rights. The Court

concluded that the adoption was impermissible unless the mother established

cause under § 2903 to waive the relinquishment requirement.

      The relevant facts of that case were as follows. The mother of twin nine-

year-old boys filed a petition to terminate the parental rights of the birth

father, who was estranged from the family, maintained little contact with the

children, and provided no financial support.       The maternal grandfather

assumed responsibility for the boys beyond that of a typical grandfather.

Indeed, while he did not reside with the family, the grandfather effectively co-

parented the children with the mother. The birth father eventually resurfaced

and initiated custody proceedings. The mother countered by filing a petition

to terminate the father’s parental rights. Her petition identified the maternal

grandfather as the party intending to adopt the boys and co-parent with

Mother after the father’s rights were terminated. The trial court granted the

petition to terminate the father’s parental rights and permitted the proposed

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adoption to proceed. Sitting en banc, this Court affirmed. Essentially, we

determined that the mother established “cause shown” pursuant to § 2901 to

proceed with the proposed adoption while retaining her parental rights. In re

Adoption of M.R.D., 128 A.3d 1249 (Pa.Super. 2015) (en banc), reversed

by 145 A.3d 1117 (Pa. 2016).

      In reversing that decision, the Pennsylvania Supreme Court first

reiterated that the Adoption Act did not permit grandparent adoptions simply

as a means to facilitate a termination of one parent’s parental rights while

retaining the rights of the other parent. Next, it outlined the sole exception

to the rule, which permits a parent to establish cause under § 2901 to excuse

the relinquishment requirement and proceed with the proposed adoption. The

Court described the inquiry as follows: “Mother and Grandfather may show

cause to waive the relinquishment requirement only if they can establish that

permitting Grandfather to adopt Children while Mother retains her parental

rights will promote a new family unit or that it is otherwise unnecessary to

require Mother to relinquish her parental rights under the circumstances of

this case.” In re Adoption of M.R.D., 145 A.3d at 1128. Finally, applying

this test to the facts of that case, our High Court determined that the mother

could not demonstrate cause pursuant to § 2901.

      It reasoned that the grandfather and the mother were not part of an

intact cohabitating family unit, insofar as they were aligned in a vertical,

parent-child relationship rather than a “committed, horizontal relationship

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such as stepparents or same-sex partners.” Id. at 1128. Moreover, the High

Court stressed that, since the grandfather already performed co-parenting

duties, no new parent-child relationship would be created.       Indeed, the

grandfather would continue to act as de facto parent. In sum, the Supreme

Court found that “[a]doption does not foster a family unit under circumstances

where, as here, the adopting party is already part of—and will continue to be

part of—a family unit that is separate from the unit which he seeks to promote

and join through adoption.” Id.

      The Supreme     Court further concluded that, generally, allowing

adoptions in this scenario, would invite the abuse of adoption proceedings for

illegitimate purposes. It developed the following position,

      [P]ermitting Grandfather to adopt and co-parent Children with
      mother would . . . open the door for misuse of adoption
      proceedings by spiteful parents as a means to involuntarily
      terminate the rights of unwanted parents, potentially allowing
      grandparents, cousins, pastors, coaches, and a litany of other
      individuals who have a close relationship with a child to stand in
      as prospective adoptive parents so that termination may be
      achieved.

Id. at 1129.

      Thus, the Court concluded that, while maternal grandfather’s efforts in

supporting his daughter and grandchildren were commendable, his “pre-

existing and continuing close relationship with Children does not establish

legal cause to excuse the requirement that Mother relinquish her parental

rights under Section 2711 prior to the adoption.” Id. While the Supreme



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Court stopped short of proclaiming that any grandparent adoption in this

situation is impermissible, it found that, absent proof that relinquishment was

otherwise unnecessary, the mother was required to relinquish her parental

rights to her sons in order to proceed with the proposed adoption by maternal

grandfather and the attendant termination of Father’s parental rights.

Accordingly, the Supreme Court reversed our order affirming the termination

of the father’s parental rights. Id. at 1130.

      Presently, Mother desired to retain her parental rights while petitioning

that Father’s rights be terminated pursuant to § 2511(a) and (b). Like the

mother in In re adoption of M.R.D., which was decided six months before

the trial court terminated Father’s parental rights herein, Mother proposed

that Grandfather, with whom she, C.A., and Grandmother resided, adopt C.A.

to formalize their existing parent-child relationship. However, in contrast to

the facts of that case, Mother utterly ignored the requirement that she

establish cause under § 2901 as to why she should not be required to

relinquish her parental rights in order for the prospective adoption by

Grandfather to be valid. Indeed, she failed to adduce any evidence relevant

to that prerequisite, and more importantly, the trial court neglected to perform




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the § 2901 analysis in accordance with the Supreme Court’s holding in In re

adoption of M.R.D., supra, prior to terminating Father’s parental rights.2


____________________________________________


2  We observe that the facts and procedural history of this case and In re
Adoption of M.R.D. are remarkably similar. Both cases arise from custody
disputes involving deadbeat fathers. Similarly, the prospective adoptive
grandfathers were married, enjoyed pre-existing parent-child relationships
with their grandsons, and effectively stood in the shoes of the respective birth
fathers in relation to co-parenting and providing for the family. Hence, in
either situation the proposed adoption would do nothing more than formalize
the respective grandfathers’ role as a de facto parent.

The only difference between the two cases is that Mother and C.A. reside with
Grandfather while the children at issue in In re Adoption of M.R.D. did not
live with their grandfather.     However, in light of the recognition that
“cohabitation is not the sine qua non of a new family unit,” and the fact that
Mother and Grandfather continue to maintain a vertical parent-child
relationship, the importance of cohabitation is diluted. Id. at 1123, citing In
re Adoption of J.M., 991 A.2d 321 (Pa.Super. 2010).              Grandfather’s
cohabitation with Mother and C.A. does not negate the reality that the
adoption would not produce anything beneficial that did not previously exist.

Furthermore, the cases are identical in that, if permitted in contravention of
§ 2901, both of the proposed grandfather adoptions would have disturbed the
family dynamics with absurd results. As the High Court explained in In re
Adoption of M.R.D.,

       such an arrangement would create confusing hybrid relationships
       within the family—Grandfather would be both Children's father
       and grandfather, Grandmother would be both a grandmother and
       a stepmother, and, more confusing still, because of
       Grandmother's status as a stepmother, Mother would be both a
       mother to Children and, technically, their stepsister. Further
       complicating matters, if Mother ever seeks to marry, the Act does
       not require Grandfather to terminate his parental rights in favor
       of Mother's spouse; thus, he could decide to remain Children's
       father and prevent Mother's spouse from having legal rights over
       Children.

In re Adoption of M.R.D., supra at 1128-1129.

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     As Grandfather’s proposed adoption is statutorily invalid absent the

§ 2901 demonstration of “cause shown,” Father’s rights cannot be terminated.

See In re Adoption of J.D.S., supra at 872 (petitioner could not establish

statutory prerequisites for termination of parental rights when proposed

adoption was unsustainable).

     Order reversed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/18/2018




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