In re C.M.

• Decision Date: 21 July 2021
• Docket Number: No. 1 MAP 2021,1 MAP 2021
• Citation: 255 A.3d 343
• Parties: IN RE: ADOPTION OF: C.M., a Minor Appeal of: B.M., Mother and D.M. and P.M., Maternal Grandparents
• Court: Pennsylvania Supreme Court

255 A.3d 343

IN RE: ADOPTION OF: C.M., a Minor Appeal of: B.M., Mother and D.M. and P.M., Maternal Grandparents

No. 1 MAP 2021

Supreme Court of Pennsylvania.

Argued: April 14, 2021

Decided: July 21, 2021

Craig Barry Bluestein, Esq., Jenkintown, Jennifer Lynn Spata, Esq., Law Offices of Craig B. Bluestein, P.C., for Appellant B.M.

Lisa Kane Brown, Esq., The Law Offices of Lisa Kane Brown, for Appellant P.M. and D.M., Grandparents.

Chelsey Annette Christiansen, Esq., High Swartz LLP, Norristown, for Appellee J.C.

Mary Coyne Pugh, Esq., Montgomery Child Advocacy Project (MCAP), Norristown, for Appellee C.M.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review of the Superior Court's decision invalidating the involuntary termination of a father's parental rights where the child's mother voluntarily relinquished her own rights but would continue to reside with the pre-adoptive maternal grandparents and maintain her parental role. The panel viewed the matter to involve unlawful custody gamesmanship in conflict with our decision in In re Adoption of M.R.D. , 636 Pa. 509, 145 A.3d 1117 (2016). Although we discern no direct conflict between the proposed adoption and M.R.D ., and disapprove of the Superior Court's holding to the contrary, we affirm the panel's disposition on the alternative grounds discussed herein.¹

I. Background

Appellee J.C. (Father) and appellant B.M. (Mother) are the natural parents of C.M., born in January of 2016. Father and Mother lived together in Texas for a period of time prior to C.M.’s birth; however, the child was born in Pennsylvania, and Mother remained with C.M. in Pennsylvania, residing with her parents (Grandparents). N.T. 6/10/2019 at 54, 56; N.T. 7/17/2019 at 9, 33, 55. Father was present at the hospital for C.M.’s birth and purchased a crib and changing table for use at Grandparents’ home. N.T. 6/10/2019 at 41, 54; N.T. 7/17/2019 at 19, 55, 61, 95, 124, 128. He returned to Texas, but ultimately moved back to Pennsylvania in late spring or summer of 2016. N.T. 6/10/2019 at 56, 116; N.T. 7/17/2019 at 54, 62, 99. Unable to reach Mother by phone and believing she had blocked his calls, Father attempted to contact Mother in person at Grandparents’ home; Mother instructed Father he was not allowed on the property, but accommodated his request to arrange visits. N.T. 6/10/2019 at 55-59, 117. Between August and September or early October of that year, Mother brought C.M. to a park to visit with Father approximately six times, then visits ceased. N.T. 6/10/2019 at 58-59, 116-17; 7/17/2019 at 99. According to Father, after several subsequent unsuccessful attempts to reach Mother by calling or texting, he was able to reach her in December of 2016 using a different phone number, and asked to arrange a visit to deliver Christmas presents to C.M; Mother responded that he was not C.M.’s father and C.M. did not need anything, and no visit was arranged nor presents delivered. N.T. 6/10/2019 at 15, 59-61, 91; N.T. 7/17/2019 at 106-07, 110-11, 151-52. Father did not attempt to reach Mother about visits again until November 22, 2017, at which time Mother hung up the phone; Father attempted to call back several times that day to no avail, and no visit occurred. N.T. 6/10/2019 at 62-67, 118, 125; N.T. 7/17/2019 at 57, 108-10, 152-53, 169; Orphans’ Court Exhibit F-3 (Father's phone record). His next attempted contact with C.M. was in February of 2019. N.T. 6/10/2019 at 71-72; N.T. 7/17/2019 at 57, 110, 112-14, 154-56.

Beginning in December of 2017, Father spent several weeks in jail following an incident in which he assaulted and fled from a police officer responding to a request for mental health assistance placed by Father's mother. N.T. 6/10/2019 at 26; N.T. 7/17/2019 at 112, 158-59. He pleaded guilty and received a sentence of two years’ probation and a driver's license suspension. N.T. 6/10/2019 at 26; N.T. 7/17/2019 at 158-59. Upon his release in February of 2018, Father was hospitalized and received inpatient treatment for post-traumatic stress disorder

(PTSD) through a Veterans Affairs (VA) hospital until April 2018, and then resided in a transition house for veterans until October 2018 while his medication was monitored. N.T. 6/10/2019 at 17; N.T. 7/17/2019 at 113-14. Since then, he has resided in a VA-subsidized home with his then-girlfriend, now-wife, A.S., her two children, and their child together who was born in early 2019. N.T. 6/10/2019 at 11-12, 96, 99-100; N.T. 7/17/2019 at 114, 127. On weekends he has custody of his two older children, born in 2012 and 2014. N.T. 6/10/2019 at 24, 40, 96-97, 114; N.T. 7/17/2019 at 123. Mother is in contact with Father's aunt as well as the mother of Father's older children; she has provided photographs of C.M. to Father's aunt, and the children have had some ongoing contact with C.M. who they know is their sibling. N.T. 6/10/2019 at 39-42, 71-72, 105, 113; N.T. 7/17/2019 at 40-41, 53-54, 58, 115.

The next and final time Father attempted to reach Mother about visiting C.M. was February 19, 2019, and after a brief exchange she hung up the phone; Father attempted to call back several times, and Mother responded with a text instructing Father not to contact her again. Orphans’ Court Exhibit F-3; N.T. 6/10/2019 at 71; N.T. 7/17/2019 at 57, 110, 112-16, 154-56. It is undisputed that Father has not seen C.M., or provided any gifts, letters, supplies, or financial support, since autumn of 2016, while Mother and Grandparents have shared caregiving responsibilities and provided generously for C.M.’s needs and welfare since birth. Orphans’ Court Opinion, 9/26/2019, at 4, 8, 10, 13.

On February 28, 2019, Father filed a complaint for custody, seeking to establish visitation with C.M. and gradually increase his involvement to shared custody. Orphans’ Court Exhibit F-4, Complaint for Custody at 3; N.T. 6/10/2019 at 68, 70; N.T. 7/17/2019 at 75, 78, 95-96, 118-19. On March 13, Mother filed a complaint for child support, and Father complied with the order for paternity testing which confirmed his status as the biological father of C.M. N.T. 6/10/2019 at 81, 83, 85-86; N.T. 7/17/2019 at 75-76, 116-17. Father and Mother both participated in custody mediation required by the county's domestic relations court, but reached no agreement. N.T. 6/10/2019 at 74; N.T. 7/17/2019 at 96, 173. Father and Mother attended a custody conciliation conference before a hearing officer, but again reached no agreement. N.T. 6/10/2019 at 74-76; N.T. 7/17/2019 at 96-97, 173. The conciliation report issued on April 3, 2019. N.T. 6/10/2019 at 76-77, 79-80.

On April 15, 2019, Grandparents, joined by Mother, filed a petition to involuntarily terminate Father's parental rights, averring grounds existed under Subsection 2511(a)(1) of the Adoption Act, 23 Pa.C.S. §§ 2101 - 2938 (the Act), which allows termination of parental rights if "[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." Orphans’ Court Docket, entries 4/15/2019, 4/26/2019; Petition for Involuntary Termination of Parental Rights of [J.C.], Biological Father at ¶5; 23 Pa.C.S. § 2511(a)(1). On April 29, 2019, Mother withdrew her complaint for child support. N.T. 6/10/2019 at 86-87. Thereafter, the domestic relations court issued a stay of the custody proceedings, Mother filed a petition to voluntarily relinquish her parental rights to C.M., Grandparents filed a petition to adopt, and the matter proceeded to orphans’ court for an evidentiary hearing on the termination of parental rights petitions.² N.T. 6/10/2019 at 86; N.T. 7/17/2019 at 85; Orphans’ Court Docket, entries 4/26/2019, 4/30/2019.

Regarding the reasons for pursuing the adoption by Grandparents, the orphans’ court found the testimony of Mother and maternal grandfather (Grandfather) credible. Orphans’ Court Opinion, 9/26/2019, at 11. Mother testified she has lupus

, a common autoimmune disease that affects her kidneys, and scleroderma, a rare build-up of collagen in the body that hardens skin and connective tissues including organs, joints, and muscles; she stated there is not much known about scleroderma, she does not make attempts to research it, and it is usually fatal within a period of ten years, though the prognosis among different individuals varies. N.T. 7/17/2019 at 35-38. She testified she receives treatment from three physicians approximately every three months which includes medication, and she experiences some bad days when pain and stiffness make it difficult to move, though currently she maintains a regular routine of school, work, and sharing care for C.M. with Grandparents without physical impediments. Id . at 35-36, 40, 73-75. Regarding the need to pursue adoption, Mother testified, "[Grandparents] know her routine. They know everything about her. She has full trust in them, and so do I, about how they're going to raise her. They have always helped both of us since she's been born, and they have helped me my whole life. And unlike [Father], they helped me with everything, and I have no doubt that they will continue to do so." Id. at 39. She further provided that, because she does not know what her own future will be, she needed to ensure C.M.’s future would be secure with her parents as she has no trust in Father. Id . at 63-64, 68. When asked why she sought termination of Father's rights at this juncture, as opposed to in either of the previous two years when he had been absent, Mother testified, "[Father] had no interest in being in my child's life for those years, so I never had to worry about petitioning for the relinquishment of his parental rights[,]" and further agreed it was not until Father filed in court to see C.M. that she decided to file the termination petition. Id . at 84-85.

Grandfather...