J-S48030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF K.M.R.                        IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: M.T.R., JR.

                                                      No. 287 WDA 2016


                Appeal from the Order Entered January 19, 2016,
                in the Court of Common Pleas of Fayette County,
                     Orphans' Court at No(s): 18 Adopt-2015.

BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                           FILED OCTOBER 20, 2016

       Appellant, M.T.R, Jr. (“Father”) appeals from the Order involuntarily

terminating his parental rights to three-year-old K.M.R. (“Child”) pursuant to

the Adoption Act, 23 Pa.C.S. § 2511(a) and (b).1            In light of the recent

Supreme Court decision in In Re: Adoption of M.R.D. and T.M.D, ___

A.3d ___, 2016 WL 4541129 (Pa. 2016), we are constrained to reverse the

trial court’s Order terminating Father’s parental rights.

       The facts of this case are as follows. In May 2013, K.D.W. (“Mother”)

gave birth to Child. Mother and Father were never married and except for a
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1
  On August 2, 2016, we issued a Memorandum Opinion affirming the trial
court. On August 29, 2016, however, the Supreme Court issued its decision
In Re: Adoption of M.R.D. and T.M.D., ___ A.3d ___, 2016 WL 4541129,
(Pa. 2016), which is directly on point with the facts of this case. On August
31, 2016, we sua sponte issued an Order withdrawing our Memorandum
Opinion and reconsidering our decision.
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short period following Child’s birth, Mother and Father have never lived

together.   Rather, Mother and Child live with Mother’s father, T.D.W.

(“Maternal Grandfather”), his wife, and Mother’s two younger sisters.

      Mother testified that her relationship with Father was unstable.       She

initially permitted Father to visit Child at her family’s home and tried to

involve Father in Child’s life, but she stopped doing this after Father

forcefully tried to remove Child from her care twice.

      Child was seven months old in December 2013 when Father began to

make less of an effort to see Child.         Father’s contact with Child became

increasingly sporadic and infrequent.          When Father visited Child, he

continued to abuse drugs and even nodded off while holding Child.          When

Father decided to visit, he would frequently appear at Mother’s home after

Child had fallen asleep.    More importantly, Father never cared for Child.

Father never bathed Child, never changed a diaper, and never woke up in

the middle of the night to care for Child.

      Father’s last visit with Child occurred during Child’s first birthday party

in May 2014.    Shortly thereafter, Father voluntarily committed himself to

drug rehabilitation in Florida in order to treat his heroin addiction, and

subsequently returned for treatment in December 2014 and January 2015.

      Father admitted that even though the rehabilitation facilities permitted

him to write letters and make some telephone calls, he did not attempt to

contact Child during those times. He also admitted that he failed to contact

Mother to find out about Child even though she resided at the same address

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and Father possessed phone numbers for Mother and her family. Aside from

sporadic Facebook messages and one attempt to have his own father deliver

money to Child in a Christmas card in 2014, Father did not attempt to

maintain contact with Child.

      On May 7, 2015, approximately twelve months after Father’s last

contact with Child, Mother filed a Petition for the Involuntary Termination of

Parental Rights (“TPR Petition”) as to Father pursuant to 23 Pa.C.S. §

2511(a)(1).

     On September 23, 2015, the Orphans’ Court held an evidentiary

hearing on the TPR Petition. Mother testified and presented the testimony of

Maternal Grandfather, who has been involved in Child’s life, and wants to

adopt Child. Father testified on his own behalf and presented the testimony

of Paternal Grandfather.

     By decree entered January 19, 2016, the Orphans’ Court granted the

TPR Petition based upon Sections 2511(a)(1) and 2511(b).          This timely

appeal by Father follows.

                            ISSUES ON APPEAL

     Father raises the following issues on appeal:

        1.    Did the [Orphans’] Court err in terminating
              [Father’s] parental rights when the proposed
              adoptive parent is [Child’s Maternal Grandfather].

        2.    Did the [Orphans’] Court err in terminating
              [Father’s] parental rights when [Mother] failed to
              prove by clear and convincing evidence that her
              grounds for seeking the termination of parental
              rights were valid.

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Father’s Brief at 1.

                        LEGAL ARGUMENT

      We will address Father’s first issue because that issue disposes of this

appeal. Father avers that the Orphans’ Court erred in terminating Father’s

parental rights because it is the Child’s Maternal Grandfather who is the

adoptive resource. Father’s Brief at 1. In light of the recent Supreme Court

decision in In Re: Adoption of M.R.D., supra, we are constrained to agree

that the trial court erroneously granted the TPR petition.

      The Supreme Court in In Re: Adoption of M.R.D., supra, addressed

the statutory scheme for adoptions in which it is a parent, instead of a child

welfare agency, that files a petition to terminate parental rights of the other

parent. In such cases, the parent who has filed the TPR Petition must

establish not only the requirements set forth in 23 Pa.C.S. § 2511, but also

that the prospective adoptive parent is authorized to adopt pursuant to the

Adoption Act. 23 Pa.C.S. § 2512(b); In Re: Adoption of M.R.D., supra at

*3.

      The Adoption Act explicitly authorizes only a stepparent to be the

adoptive resource when it is a biological parent who is filing a TPR petition

against the other biological parent. See 23 Pa.C.S. § 2903. If, however,

the adoptive resource is someone other than a stepparent, the Adoption Act

requires the biological parent who is filing the TPR petition to relinquish his

parental rights.   23 Pa.C.S. § 2711(a)(3); In Re: Adoption of M.R.D.,

supra at *3.

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      Applying this interpretation of the Adoption Act to the facts in In Re:

Adoption of M.R.D., supra, the Supreme Court concluded that “while the

Adoption Act allows a parent to retain his or her rights in cases where a

stepparent petitions to adopt his or her child, the Act contains no other

provision authorizing a biological parent who consents to an adoption to

retain his or her parental rights.” Id. at *10 (internal citation omitted).

      The Supreme Court continued its analysis by considering whether the

trial court could waive the relinquishment provision under Section 2901.

Section 2901 permits the trial court to waive requirements set forth in the

Adoption Act for “cause shown[.]” 23 Pa. C.S. § 2901; In Re: Adoption of

M.R.D., supra at *10.

      The Supreme Court concluded that it was only proper for the trial court

to waive the requirement of relinquishment in cases in which “the parent and

the prospective adoptive parent are committed partners—that is, they are

involved in a horizontal relationship, are equals as between each other, and

are equals with respect to the child.”     Id. at *11.    The Supreme Court,

however, refused to interpret the “cause shown” provision to allow the trial

court to waive the relinquishment requirement where the adoptive resource

is a grandparent because “[a]doption does not foster a family unit under

circumstances where, as here, the adopting party is already part of—and will




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continue to be part of—a family unit that is separate from the unit which he

seeks to promote and join through adoption.”2 Id.

       In this case, it is the Maternal Grandfather, and not a stepparent, who

is the prospective adoptive resource, and Mother is not willing to relinquish

her parental rights.      Since the Adoption Act does not permit the Maternal

Grandfather     to   be    a   prospective     adoptive   resource   unless   Mother

relinquishes her parental rights, the Adoption Act does not permit the

Maternal Grandfather to be an adoptive resource.

       Moreover, because Mother and Maternal Grandfather are in a “vertical,

parent-child relationship[,]” instead of a “horizontal relationship” the

adoption would not “foster a family unit” and thus, the trial court may not

find “cause shown” to waive the relinquishment requirement of the Adoption

Act. Id. at *11.

       Therefore, we are constrained to reverse the trial court’s grant of the

TPR petition based on its finding that the Maternal Grandfather was an

authorized adoptive resource.


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2
  We highlight Justice Todd’s special concurrence in this case in which she
observes that the concept of “family” has evolved over the past 35 years
since the legislature imposed the requirement that the adoptive resource
must be a spouse or partner of the biological parent. We share this view, as
well as her request that “the legislature, with continued focus on the best
interests of our Commonwealth’s children, [ ] revisit the adoption and
relinquishment requirements for termination of parental rights under the
Act.” Id. at *16 (Todd, J., concurring).



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     In light of our ruling on the first issue, we do not need to address

Father’s remaining issue.

     Order reversed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




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