Adoption of: C.M., Appeal of: J.C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: C.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: J.C., FATHER :
:
:
:
: No. 3060 EDA 2019

Appeal from the Decree Entered September 27, 2019
In the Court of Common Pleas of Montgomery County Orphans' Court at
No(s): No. 2019-A0053

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

DISSENTING MEMORANDUM BY PELLEGRINI, J.:

FILED SEPTEMBER 3, 2020

In order to facilitate their adoption of C.M.,1 her Maternal Grandparents

filed a petition to terminate Father’s parental rights. Mother joined in the

petition as well as filing a petition to voluntarily relinquish her parental rights.

She did so because of ongoing medical issues. The majority, based on the

rationale and what it discerns to be “public policy” of In re Adoption of

M.R.D., 145 A.3d 1117 (Pa. 2016), and what it discerns to be the public policy

behind it, would foreclose the adoption by Maternal Grandparents, even

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* Retired Senior Judge assigned to the Superior Court.

1C.M. was represented during these proceedings by appointed legal counsel
who supports the adoption and termination of Father’s parental rights.
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though they meet the express requirement of the Adoption Act because

Mother would still reside with them and still be involved with C.M.’s care.

Because I disagree with the majority’s conclusion because it, in effect,

amends that provision of the Adoption Code and does not accept the facts as

found by the orphans’ court, I respectfully dissent.

Some background first.

I.

A.

23 Pa.C.S. § 2512(a) of the Adoption Act2 provides who may bring a

petition to involuntarily terminate parental rights and what the petition must

contain. It provides, in relevant part:

(a) Who may file.—A petition to terminate parental rights with
respect to a child under the age of 18 years may be filed by any
of the following:

(1) Either parent when termination is sought with respect to
the other parent.

***

(3) The individual having custody or standing in loco
parentis to the child and who has filed a report of intention
to adopt required by section 2531 (relating to report of
intention to adopt). (Emphasis added).

23 Pa.C.S. § 2512(b) requires that in addition to setting forth the basis

for terminating parental rights, it also requires that “an averment that the

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2 23 Pa.C.S. §§ 2101-2938.

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petitioner will assume custody of the child until such time as the child is

adopted.” In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2011). A

contemplated adoption is required because “the purpose of involuntary

termination of parental rights is to dispense with the need for parental consent

to an adoption when, by choice or neglect, a parent has failed to meet the

continuing needs of the child.” Id. at 1108.3

B.

Once the pleading set forth under Section 2512(b) satisfies the statutory

prerequisites for a hearing, the orphans’ court then applies the two-part test

for termination of parental rights set forth in 23 Pa.C.S. § 2511. 4 The initial

focus is on the conduct of the parent whose rights are at issue. In re C.L.G.,

956 A.2d 999, 1004 (Pa. Super. 2008). Termination under Section 2511(a)(1)

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3 The Adoption Act requires both parents to consent to the adoption and
relinquish their parental rights. See 23 Pa.C.S. §2711. This relinquishment
severs the legal ties between the child and the natural parents allowing the
child to be adopted. See In re Adoption of M.R.D., 145 A.3d at 1128.

4 Generally, the Adoption Act does not permit one parent to retain parental
rights while terminating the other parent’s rights. 23 Pa.C.S. § 2711. Two
exceptions allow a parent to retain parental rights while allowing the child to
be adopted. The first is the “spousal exception” under 23 Pa.C.S. § 2903,
permitting a parent to consent to the adoption by a spouse (i.e., the
stepparent) while keeping intact his/her own legal relationship with the child.
The second is the “cause shown” exception under 23 Pa.C.S. § 2901 that gives
the orphans’ court discretion to grant an adoption petition in limited
circumstances where the moving parent cannot meet the statutory
requirements, but has demonstrated good cause for noncompliance. If neither
of these exceptions applies, then the proposed adoption would be invalid.

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requires the moving party to produce clear and convincing evidence of

conduct, sustained for at least the six months prior to the filing of the

termination petition, revealing a settled intent to relinquish parental claim to

a child or a refusal or failure to perform parental duties.

"Parental duties" have been defined as follows:

There is no simple or easy definition of parental duties. Parental
duty is best understood in relation to the needs of a child. A child
needs love, protection, guidance, and support. These needs,
physical and emotional, cannot be met by a merely passive
interest in the development of the child. ... The parental
obligation is a positive duty which requires affirmative
performance. This affirmative duty encompasses more than a
financial obligation; it requires continuing interest in the child and
a genuine effort to maintain communication and association with
the child. Because a child needs more than a benefactor, parental
duty requires that a parent exert himself to take and maintain a
place of importance in the child’s life.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004) (quoting In re C.M.S.,

832 A.2d 457, 462 (Pa. Super. 2003)).

In addition, the moving party is not required to demonstrate both a

settled purpose of relinquishing parental claim to a child and refusal or failure

to perform parental duties. 23 Pa.C.S. § 2511(a)(1) provides that parental

rights may be terminated if the parent either demonstrates a settled purpose

of relinquishing a parental claim to a child or fails to perform parental duties.

Regarding the six-month period prior to filing the termination petition,

in In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008), we stated that:

[T]he orphans’ court must consider the whole history of a given
case and not mechanically apply the six-month statutory
provision. The court must examine the individual circumstances

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of each case and consider all explanations offered by the parent
facing termination of his ... parental rights, to determine if the
evidence, in light of the totality of the circumstances, clearly
warrants the involuntary termination.

Once the evidence establishes a failure to perform parental duties or a

settled purpose of relinquishing parental rights, the court must engage in

three lines of inquiry: (1) the parent’s explanation for his ... conduct; (2) the

post-abandonment contact between parent and child; and (3) consideration

of the effect of termination of parental rights on the child pursuant to 23

Pa.C.S. § 2511(b). Id.

The third prong of the termination test centers on the needs and welfare

of the child. In re Z.P., 994 A.2d 1108, 1121 (Pa. Super. 2010); 23 Pa.C.S.

§ 2511(b). “A proper Section 2511(b) analysis focuses on whether

termination of parental rights would best serve the developmental, physical,

and emotional needs and welfare of the child.” In re T.D., 949 A.2d 910, 920

(Pa. Super. 2008). In In re T.S.M., 71 A.3d 251, 267 (Pa. 2013), our

Supreme Court stated:

The emotional needs and welfare of the child have been
properly interpreted to include "[i]ntangibles such as love,
comfort, security, and stability." In re K.M., 53 A.3d 781, 791
(Pa. Super. 2012). In In re E.M., 620 A.2d 481, 485 (Pa. 1993),
this Court held that the determination of the child’s “needs and
welfare” requires consideration of the emotional bonds between
the parent and child. The “utmost attention” should be paid to
discerning the effect on the child of permanently severing the
parental bond. In re K.M., 53 A.3d at 791.

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C.

Recently, in In re Adoption of M.R.D., our Supreme Court addressed

involuntary termination of a father’s parental rights where the mother sought

to retain her own. Mother sought the termination of the father's parental

rights to allow the maternal grandfather to adopt her children and become the

mother's co-parent. Because the mother sought to retain her parental rights,

no adoption would be valid unless an exception to the Adoption Act applied.

Because, obviously, the spousal exception did not apply, mother claimed she

fell within the “good cause” exception contained in 23 Pa.C.S. § 29015 for

allowing the proposed grandparent adoption because the father had been

absent from the children's lives for years while the maternal grandfather

regularly shared parental duties with mother.

Concluding that the “good cause shown” was not made out, our

Supreme Court reversed the termination, reasoning that the mother and the

maternal grandfather were not part of an intact family unit, nor would the

proposed adoption create one because the maternal grandfather planned to

live separately from the mother and the children. It also “cautioned that

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5 23 Pa.C.S. § 2901 provides that: “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, the investigation
required by section 2535 (relating to investigation) has been completed, the
report of the intermediary has been filed pursuant to section 2533 (relating to
report of intermediary) 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. § 2901.

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permitting the maternal grandfather to adopt” 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. As our Supreme Court noted,

“[g]iven that the complete and irrevocable termination of parental rights is

one of the most serious and severe steps a court can take, we must ensure

that we do not open the floodgates to such gamesmanship." Id. (citation

omitted). It concluded that the mother could not employ the cause shown

exception as a matter of law.

Now to the merits of this appeal

II.

The majority does not dispute that Maternal Grandparents met all the

statutory requirements to seek adoption and terminate Father’s parental

rights under 23 Pa.C.S. § 2512 (a). Nor does it dispute that there is clear and

convincing evidence that showed that Father had “a settled purpose of

relinquishing a parental claim to a child or has refused or failed to perform

parental duties.” 23 Pa.C.S. § 2511(a)(1). Instead, the majority finds that,

even though the statutory requirements were met, the termination of Father’s

parental rights pursuant to § 2511(a)(1) and (b) does not promote the

statutory intent or legislative purpose of the Adoption Act.

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It expressly does so based, not on the holding, but the rationale set

forth in In re Adoption of M.R.D. because Maternal Grandparents’ proposed

adoption purportedly would not create a new family unit because Mother will

continue to share a maternal relationship with C.M. Simply put, the majority

found that the proposed adoption is pretextual. It also found that because

Mother expressed her intent to continue as C.M.’s daily caregiver and that

Mother voluntarily relinquished her parental rights because Father utilized the

courts to pursue custodial rights to C.M.

I disagree with the majority’s conclusions for several reasons because it

does not apply the law as written and ignores the orphans’ court’s factual

finding.

First, In re Adoption of M.R.D. does not apply to this case. That case

involved the mother’s petition to terminate father’s parental rights under 23

Pa.C.S. § 2901 allowing an orphans’ court to terminate parental rights for

“good cause shown” even though the other spouse is going to retain his or her

parental rights. What In re Adoption of M.R.D. addressed was whether

there was “good cause” to terminate father’s parental rights when mother

retained hers. Our Supreme Court held that because of the factors previously

mentioned, “good cause” was not “shown.”

This case is not a “good cause shown” case brought under 23 Pa.C.S.

§ 2901 because the application here is not that of the Mother but of the

Maternal Grandparents, who have a right to independently seek adoption

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under 23 Pa.C.S. § 2512(a)(3). Once Mother has relinquished her parental

rights, the focus is on whether the Maternal Grandparents’ petition meets the

statutory basis for adoption and termination of parental rights. Resolution of

the issue does not involve a good cause analysis, only whether the statutory

requirements are met. Accordingly, the good cause exception does not apply.

Second, what the majority ignores is that the adoption is a statutory

procedure. Once you meet the requirements of a statute, you are entitled to

what is requested. There is no dispute that Maternal Grandparents met the

requirements of 23 Pa.C.S. § 2512 (a). The majority, instead of applying the

clear statutory standards, instead adds an additional requirement to that

provision that if one of the parents is going to perform some parental duties,

then there cannot be an adoption.

Third, not only does this involve a different provision of the Adoption

Code, the facts are decidedly different. In In re Adoption of M.R.D., our

Supreme Court reasoned that the mother and the maternal grandfather would

not create an intact family unit because the maternal grandfather planned to

live separately from the mother and the children. In this case, allowing the

adoption as an intact family because Maternal Grandparents, Mother and C.M.

would live together, giving C.M. permanency in relationships. Just because

they had lived together as a family unit before (Mother will continue to provide

parental duties so long as her health allows) does not disqualify them as a

family unit or a new family unit. For example, foster parents have custody of

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children and perform parental duties but that does not foreclose a finding that

it was not a new family unit.

Finally, the majority’s finding that adoption was pretextual is directly

contrary to the orphans’ court’s findings. In addressing Father's argument

that the petition is contrived and inappropriate, the orphans’ court stated:

The birth mother, B.M., and her father testified that she has been
diagnosed with lupus and scleroderma, which are debilitating
and may prove fatal. N.T. 7/17/2019, p. 13. As a result of
these diagnoses, she and her parents discussed adoption of C.M.
so that C.M. would have stability in her home life and be raised
and supported by her adoptive parents, who have been part of her
household and her loving family members for all of her life. Birth
father argues that the adoption petition, …, is a contrived effort to
deprive him of his parental rights.

***

Birth father complains that he feels he faces termination of
parental rights because he filed a custody petition. While it is true
that maternal grandparents and birth mother filed their petitions
in this matter following receipt of birth father's February 2019
custody petition, this court finds the testimony of maternal
grandfather and birth mother credible regarding their
reasons for seeking to have the grandparents adopt this
child.

Orphans’ Court Opinion, pp. 10-11 (emphasis added).

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III.

Father also challenged the orphan’s court findings that there was clear

and convincing evidence to terminate his parental rights pursuant to 23

Pa.C.S. § 2511(a)(1). The orphans’ court in its well-reasoned and through

opinion addressed Father’s failure to carry out any parental duties, and his

post abandonment contact with child were, at best, feeble. It found that:

The facts clearly established in this case demonstrate a
lengthy period of more than two years and four months during
which the birth father failed and refused to perform any parental
duties whatsoever with respect to this child. The birth father, J.C.,
acknowledged in his testimony that he has not seen nor supported
the child since October 2016, when she was nine months old. N.T.
6/10/2019, pp 12-13. The birth father stated that he has only
seen the child a total of six or seven times from the date of her
birth until October of 2016. N.T. 6/10/2019, p. 108. He never
lived with the child, and never provided any support for her, other
than purchasing a crib and providing $50 to birth mother on one
occasion in October of 2016. He conceded that he has not
contacted his daughter to provide her birthday presents, cards or
other tokens of affection, nor had he provided her with food,
clothing or other support in 2017, 2018 or 2019, up until the filing
of the petition for termination of his parental rights. N.T.
6/10/2019, pp. 13-16.

***

The birth father admitted in his testimony that he has no
bond with the child and that he has not contributed financially to
supporting the child in any way since the spring of 2016. N.T.
7/17/2019 at pp. 109 and 129. Indeed, he acknowledged in his
testimony that he has not been a father to this child since October
2016. N.T. 7/17/2019 at p. 143.

Orphans’ Court Opinion, pp. 3-4.

Based on those undisputed facts, the orphans’ court found that Maternal

Grandparents had established by clear and convincing evidence that Father

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failed to parent this child for a period of over two years from October 2016

through the date of the filing of the petition to terminate parental rights on

April 15, 2019. It also found that in the six months immediately preceding

the filing of the petition, Father had no contact with and provided no support

for the child and utterly failed to perform any parental duties or

responsibilities.

The orphans’ court found that Mother did not “thwart” Father’s contact

with C.M. In considering Father’s explanation for failing to carry out his

parental duties, the orphans’ court stated Father’s reason as follows:

In essence, J.C. [Father] claims that birth mother, having
separated from him, did not wish to speak to him and prevented
him from seeing his daughter.

J.C. testified that he called the birth mother a limited
number of times in late 2016 and late 2017. Specifically, he
testified that he telephoned the birth mother once in December of
2016, told her that he had presents he wished to give to C.M., and
that the birth mother at that time told him that she did not
consider him to be the father, and that she did not need anything
from him. N.T. 7/17/2019, pp. 106-107. J.C. testified that he
called the birth mother a second time on November 22, 2017,
approximately thirteen (13) months after he had last seen the
child. He stated that he wished to see C.M. and he claims that the
birth mother again stated that he is not the father and terminated
the call. He claims he tried to call the birth mother back
approximately 7 times on November 22, 2017 and his calls were
not answered. N.T. 7/17/2019, p 109.

After the November 22, 2017 telephone call he did not have
any contact with birth mother until February 19, 2019, when he
filed a petition for custody seeking visits with the child and
telephoned the birth mother for a third time. N.T. 7/17/2019, p.
112. Although birth father claims that birth mother at some point
in 2016, when he attempted to visit her and the child at her
parent's home, told him that he was not welcome, it appears that

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this occurred before October 13, 2016, during the period when
birth mother and birth father arranged a limited number of visits
at a park. Birth father also claims that birth mother called the
police and threatened to have him charged with harassment, but
he provided no specifics and no corroboration of this allegation.
Birth father acknowledged that although birth mother had
petitioned for a protection from abuse order before the child’s
birth, that petition had been withdrawn and no protection from
abuse order had been granted preventing him from seeing his
child.

Birth father explained that he was incarcerated or admitted
to an inpatient psychiatric hospital in December 2017 through
February of 2018, and that thereafter he was residing at a
Veterans’ Administration facility and transitional housing under
the Veterans’ Administration from February of 2018 through
October of 2018. N.T. 7/17/2019, p. 113. He testified that he
has a diagnosis of PTSD. He also testified that he had a criminal
charge of assault related to an assault on a police officer in 2017,
to which he had pleaded guilty.

He testified that in February of 2019, he telephoned the
birth mother for a third time and requested to visit the child and
again the birth mother declined to discuss visits with him.
Thereafter, he testified that birth mother sent him a text message
asking him not to contact her again. N.T. 7/17/2019, p. 114.
Upon cross-examination, birth father acknowledged text
messages in which birth mother had said “you are not a father,
you are just a sperm donor.” N.T. 7/17/2019, p. 130-31.

Orphans’ Court Opinion, pp 5-6. Finding him not credible, the orphans’ court

rejected Father’s explanation that he was prevented from carrying out any

parental duties, stating:

This court concludes that the testimony of J.C. that birth
mother repeatedly told him he was not the father of the child was
neither entirely candid nor credible. It is clear from the testimony
as a whole that, between October 2016 and February 2019, when
birth father reached out to her, birth mother was communicating
that she did not consider him to be acting as a father, but she did
not imply – nor did he truly understand her to be saying – that he
was not the biological father of the child. This court finds his

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testimony that he understood birth mother to question his
paternity to lack credibility.

***

The birth father’s explanation for his conduct in this case is
inadequate and inconsistent. He states that he had no choice but
to file a petition for custody because birth mother would not agree
to visits between him and C.M. However, he made telephone calls
to the birth mother on only three occasions over a period of over
two years, specifically in December of 2016, on November 22,
2017 and in February of 2019. These sporadic telephone calls
with no written follow-up and no petition seeking custody until
2019, are not sufficient to establish a persistent and determined
effort to establish a parent-child relationship with C.M. As
observed above, a parent “must demonstrate a serious intent . . .
to re-cultivate a parent-child relationship,” and a parent must not
yield to every obstacle but must exercise reasonable firmness in
seeking to establish and maintain a parent-child relationship.

Orphans’ Court Opinion, pp 6-7.

Given that the orphans’ court rejected Father’s explanation as not

credible, the majority improperly found that Father had justifiable reasons.

Lastly, the orphans’ court’s decision advanced “primary” consideration

that effect of termination of parental rights on C.M. would best foster the

developmental, physical and emotional needs and welfare of the child.” 23

Pa.C.S § 2511(b). In considering those needs, the orphans’ court found:

In this case, the testimony clearly established that the birth
father has not maintained contact nor exercised reasonable
firmness in seeking and obtaining opportunities to visit and
develop a parental relationship with child. As birth father himself
acknowledged, there is no parental bond between the child and
birth father.

By contrast, the Court concludes, based upon all of the
testimony, that there is a close, nurturing and loving relationship
between the child and the prospective adoptive parents, with

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whom she lives and who are part of her daily support structure.
Her emotional and physical needs are being met and will continue
to be met in this loving home.

Consequently, this court concludes that there will be no
harm or detriment to the child from terminating the parental rights
of the birth father, as there is no parental bond whatsoever that
will be severed. The emotional needs and welfare of the child can
best be met by termination of the parental rights of the birth
father, and the child will not suffer a detriment, and will not suffer
irreparable harm, as a result of termination of the parental rights
of this birth father.

Orphans’ Court Opinion at pp. 12-13.

Given that our standard of review requires us to accept the findings of

fact and credibility determinations of the orphans’ court and apply the

Adoption Code as written, not as we think it should be written, because I can

discern no error of law or abuse of discretion in any of the orphans’ court’s

findings or conclusions, I would affirm its decision.

Accordingly, I respectfully dissent.

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