                             [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 WECHT                                               Decided: August 29, 2016

      I join in the learned majority’s decision to reverse the termination of Father’s

parental rights.   I write separately to emphasize that termination of parental rights

(“TPR”) petitions are not to be used as weapons in child custody litigation, and that our

courts must rebuff such attempts.

      Termination of parental rights is an extreme and last-ditch measure. Its finality is

striking. It is emphatically not a tool to be deployed in custody disputes. The process

undertaken by Mother in this case, employing her own father (“Grandfather”) as a

putative adoptive parent for her children, notwithstanding the fact that he remains

married to Grandmother (Mother’s mother), and notwithstanding the fact that Mother

and Grandfather do not cohabit, strikes me as at best a clumsy and overweening

attempt to gain advantage in custody.
      There is no reason to doubt that Grandfather in this case is a caring person, one

who has devoted much time and effort for the benefit of his grandchildren. This is

something characteristic of many thousands of grandparents across Pennsylvania.

Mother’s attempt to latch onto Grandfather as a convenient resource -- indeed, as an

adoptive resource -- should not have been approved by the trial court or by the Superior

Court. To countenance Mother’s litigation tactics would be to countenance corruption of

our adoption laws.

      Our decision in In re Adoption of L.J.B., 18 A.3d 1098 (Pa. 2011), recognized the

danger of approving TPR petitions of this type. We observed that, to allow custody

litigants to invoke TPR petitions as a weapon would foster the creation of orphans and

“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.” Id. at 1110. Perish the thought.

      For this reason, while I wholeheartedly agree with Justice Todd that “there are

many families comprised of only a parent and a child where the single parent is fully

capable of raising and providing for his or her child,” Slip Op. at 2 (Todd, J. specially

concurring), I cannot join her request that the General Assembly revisit the Adoption

Act’s requirement that a parent filing a TPR petition demonstrate that an adoption is

contemplated. While it is unequivocally true “that today’s families are not necessarily

the traditional nuclear families that were envisioned at the time our adoption laws were

initially drafted”, id., and while I agree that our General Assembly should scrutinize the

Domestic Relations Code for anachronistic or obsolete provisions, I have presided over

far too many acrimonious custody trials to favor statutory revisions which would




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encourage or condone the use of TPR petitions to gain leverage in (or perhaps short-cut

or foreclose) custody disputes.

      In this particular case, the Superior Court’s opinion strikingly ignores the fact that

the proposed adoption lacked the required integrity, inasmuch as it appears to have

been initiated merely to stave off and defeat Father’s claim for custody. Indeed, it was

not until Father showed signs of pursuing his custody claims that Mother decided, L.J.B.

notwithstanding, to pull the TPR arrow out of the quiver and attempt to nock her

bowstring with it. Hence, proclaims the Superior Court: “Only when Father filed his

unforeseen petition for custody of Children, did Mother and Maternal Grandfather need

court intervention to protect Children.” In re Adoption of M.R.D., 128 A.3d 1249, 1264

(Pa. Super. 2015) (en banc). Whether “unforeseen” or not, one is left to wonder why

Mother did not file a petition for confirmation of custody, or simply defend against

Father’s complaint based upon his lack of involvement, or seek some other custody

relief of the several types sought by litigants in this Commonwealth every day of the

week. While Mother’s alternative response (filing a TPR petition and seeking to have

Grandfather named as an adoptive “parent”) may have shown creativity and

determination, it did not comport with Pennsylvania law. This is especially so given the

demonstrable fact that the trial court in this case, like trial courts all across this

Commonwealth, has robust discretionary authority to limit and even completely curtail

Father’s custody rights under the custody statutes without resort to the draconian

remedy of termination of parental rights under the adoption laws.

      Another peculiar curiosity of the decisions reached by the trial court and the

Superior Court in this case is the near-complete deletion of the maternal Grandmother’s




                             [J-59-2016] [MO: Todd, J.] - 3
role. Recall that Grandfather and Grandmother cohabit, that they are both grandparents

to the children involved in this case, that they are both parents of the petitioner mother

in this case, and that they both would be affected by the judicial relief afforded by the

lower courts here. Nonetheless, to read the opinions of the trial court and the Superior

Court in this case, one might be forgiven for concluding that Grandmother has faded

away into the wallpaper. Since Grandfather would now become the “father” of the

children as well as their grandfather, Grandmother presumably would now become not

just their grandmother but also their step-mother. What is more, Grandmother would

continue to cohabit with the children’s new “father,” even though the children live in a

separate location with their mother, a person who also is Grandmother’s / step-mother’s

natural daughter. While Grandfather would now become not only the grandfather but

also the “father” of the children, and accordingly the co-parent of his own daughter,

Grandmother would remain only a grandmother, without parental rights. Moreover, in

the event that Mother would choose to marry, Grandmother would find herself married

to a man who is the “father” of children who live with a step-parent who is not regarded

as part of a new family unit.

       It is impossible to discern with any level of clarity whether the lower courts in this

case were rewarding Grandfather for his diligence as a grandparent, or punishing

Father for his absence, or supporting Mother by directing more assistance toward her,

or collapsing the custody and adoption laws upon one another so as to create a

potpourri of remedies for Mother in family court. In any case, it is critically important that

our judges not make bad situations worse by allowing often-angry parents to turn

custody disputes into orphan factories.




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