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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN RE: ADOPTION OF: X.P.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: K.K., NATURAL MOTHER : No. 128 WDA 2015
Appeal from the Order entered December 22, 2014,
Court of Common Pleas, Butler County,
Orphans’ Court at No. OA No. 2011-00035a
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.
CONCURRING MEMORANDUM BY DONOHUE, J.: FILED AUGUST 26, 2015
I agree with the learned Majority’s conclusion that the orphans’ court
did not err or abuse its discretion by terminating Mother’s parental rights to
Child. In my view, however, the Majority’s decision is incomplete, as it fails
to address Stepmother’s intention to adopt Child. My reasoning follows.
“A petition to terminate a natural parent’s parental rights, filed by one
natural parent against the other under Section 2512(a)(1), is cognizable
only if an adoption of the child is foreseeable.” In re E.M.I., 57 A.3d 1278,
1285 (Pa. Super. 2012) (emphasis added); see also In re B.E., 377 A.2d
153, 154-55 (Pa. 1977) (“[T]he Adoption Act provides for termination of
parental rights only in connection with a plan for adoption … [T]he
Legislature intended the petition for involuntary termination of parental
rights to be available solely as an aid to adoption.”) (footnote omitted). Our
Supreme Court has held that orphans’ courts “should consider, and not
merely accept on its face,” a stepparent’s statement that he or she intends
*Retired Senior Judge assigned to the Superior Court.
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to adopt the spouse’s child upon termination of the other parent’s rights. In
re Adoption of L.J.B., 18 A.3d 1098, 1108 (Pa. 2011) (quoting In re T.R.,
465 A.2d 642, 644 n.10 (Pa. 1983)). This is necessary to ensure “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, [is] properly [] determined.” Id.
Although Mother did not raise a claim on appeal questioning
Stepmother’s intention to adopt Child, a genuine intent to adopt Child is a
prerequisite to permitting the termination of parental rights. See In re
Adoption of J.D.S., 763 A.2d 867, 870-71 (Pa. Super. 2000). In J.D.S.,
the child’s stepfather filed a petition to involuntarily terminate the biological
father’s parental rights, concomitantly stating his intention to adopt the child
upon termination. Id. at 868. The mother filed notice of her consent to the
stepfather’s proposed adoption. Id. The orphans’ court granted the petition
to terminate the father’s parental rights. On appeal, counsel for the
stepfather and mother sought to withdraw as appellate counsel based upon
the mother and stepfather’s separation and the belief “that divorce was
imminent.” Id. at 869. We remanded the case to the orphans’ court to
determine whether the stepfather still intended to adopt the child in light of
his marital problems with the child’s mother. Id. At the remand
proceeding, the stepfather testified: “Sometimes there is a lot of anger in
separation situations, what anger brings out. I don't know what the future
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holds. Maybe we will reconcile. Maybe we won’t. There’s not a definite
answer.” Id. (record citation omitted).
Upon return of the case to this Court for decision, we concluded as
follows:
[W]e find the evidence does not satisfy the
burden of proof applicable in parental termination
cases involving a stepparent adoption. 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.
The Adoption Act provides:
Unless the court for cause shown determines
otherwise, no decree of adoption shall be entered
unless the natural parent or parents’ rights have
been terminated ... and all other legal
requirements have been met. If all legal
requirements have been met, the court may enter
a decree of adoption at any time.
23 Pa.C.S.A. § 2901, Time of entry of decree of
adoption (emphasis added). The judicial discretion
provided by this section cannot be exercised unless
and until the statutory requirements leading up to
the adoption have been met and, until that time, the
best interest and general welfare of the child cannot
be considered. In Interest of Coast, [] 561 A.2d
762 ([Pa. Super.] 1989), appeal denied, [] 575 A.2d
560 ([Pa.] 1990).
Termination of the natural parent’s rights prior to
adoption and allowance of stepparent adoption is for
the purposes of protecting the integrity and stability
of the new family unit. Because the primary function
of government and law is to preserve and perpetuate
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society, the traditional family structure is given every
reasonable presumption in its favor. This
comprehends an intact and subsisting family
including a stepparent.
* * *
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. The policy consideration for permitting a
stepparent adoption is defeated by the separation
and contemplation of divorce. Under the facts of this
case, as evidenced by the testimony on the record,
we find the petitioner has not met his burden of
establishing the statutory prerequisite for
termination of father’s rights.
Without implementation of section 2701, Consent
to adopt, which must be read in pari materia with
section 2511(a)(1), we conclude termination of
father’s parental rights was improper.
Id. at 870-72 (emphasis supplied).
Although the Majority briefly mentions that Stepmother filed notice of
her intention to adopt Child upon the orphans’ court granting Father’s
petition to terminate Mother’s parental rights,1 it does not discuss the
1
I note that although Stepmother filed a formal report of her intention to
adopt Child, the Adoption Act did not require her to do so. See 23 Pa.C.S.A.
§ 2531(c) (“No report [of intention to adopt] shall be required when the
child is the … stepchild … of the person receiving or retaining custody or
physical care.”). The Adoption Act did require Father in his petition to
involuntary terminate Mother’s parental rights to Child to “aver that an
adoption is presently contemplated [and] that a person with a present
intention to adopt exists,” and the record reflects that he complied with this
requirement. See 23 Pa.C.S.A. § 2512(b); In re E.M.I., 57 A.3d 1278,
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orphans’ court’s consideration of whether Stepmother in fact intended to
adopt Child. My review of the record reveals that the orphans’ court did not
make a finding specific to Stepmother’s intention regarding her adoption of
Child. The orphans’ court did find, however, that “Stepmother and Child
have a [m]other-child relationship and that Stepmother has provided the
primary parenting needs of Child since Father’s and Stepmother’s date of
marriage [in 2009].” Orphans’ Court Opinion, 3/5/15, at 18. Furthermore,
the record reflects that in addition to Father averring in his termination
petition that Stepmother intended to adopt and Stepmother filing a report of
her intention to adopt, Stepmother testified at the termination hearing
regarding her continued intention to adopt Child if the orphans’ court
terminated Mother’s parental rights. N.T., 7/8/14, at 15. This Court has
found that a stepmother’s participation in the termination hearing satisfied
the requirement that she intended to adopt the child. In re Adoption of
J.F., 572 A.2d 223, 225 (Pa. Super. 1990). As such, I agree with the
Majority that the orphans’ court properly granted Father’s petition to
terminate Mother’s parental rights to Child.
1285 (Pa. Super. 2012); see also Petition for Involuntary Termination of
Parental Rights, 6/20/13, ¶ 12.
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In Re: Adoption of: X.P.D. Appeal of: K.K., mother
Combined Opinion