In re M.R.D.

• Decision Date: 29 August 2016
• Docket Number: No. 26 MAP 2016,26 MAP 2016
• Citation: 145 A.3d 1117
• Parties: In re ADOPTION OF M.R.D. and T.M.D., Minor Children. Appeal of M.C., Natural Father.
• Court: Pennsylvania Supreme Court

145 A.3d 1117

In re ADOPTION OF M.R.D. and T.M.D., Minor Children.

Appeal of M.C., Natural Father.

No. 26 MAP 2016

Supreme Court of Pennsylvania.

Argued May 10, 2016.

Decided Aug. 29, 2016.

Melody Lynn Protasio, Miele and Rymsza, P.C., for M.C., Appellant.

John A Gummo, for Guardian Ad Litem, Appellee.

Bradley Scotte Hilman, Bret J. Southard, Casale & Bonner, P.C., for M.D., Appellee.

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

OPINION

JUSTICE TODD.

In this appeal by allowance, we consider whether, in order to facilitate the termination of a biological father's parental rights, a grandfather may adopt his grandchildren with the children's mother—his daughter. For the reasons that follow, we find the “cause” exception in Section 2901 of the Adoption Act, 23 Pa.C.S. § 2901

, does not, under such circumstances, excuse a mother from the Act's requirement that she relinquish her parental rights. Accordingly, as the contemplated adoption cannot proceed, we reverse the order affirming the termination of the father's parental rights.

By way of background, M.D. (“Mother”) met M.C. (“Father”) in 2002, when she was teaching in South Dakota, and the two became romantically involved, residing together until Mother returned to Pennsylvania in October 2003. Father briefly moved to Pennsylvania in January 2004 to be with Mother; however, the relationship quickly ended, and he ultimately returned to South Dakota. Shortly thereafter, Mother learned that she was pregnant with twin boys, and she moved in with her parents, who resided in Lycoming County. Although Father was aware that Mother was pregnant with his children, Father and Mother spoke infrequently throughout the pregnancy, and he did not visit.

In October 2004, Mother gave birth to M.R.D. and T.M.D. (“Children”). Father visited for a few days following Children's birth and returned for visits in December 2004 and January 2006; however, Father did not visit again, and his subsequent efforts at maintaining a relationship with Children were marginal at best. Indeed, in February 2006, when Mother discussed the possibility of traveling with Children to South Dakota to visit with Father and his family, Father refused. Father provided no financial support after his January 2006 visit, and he sent Children no written correspondence after January 2007. Additionally, although Father called Mother in the spring of 2007, he sounded intoxicated, and Mother subsequently changed her telephone number to an unlisted number. Mother had no contact with Father after his last telephone call.

In 2009, despite having had no contact with Mother or Children for several years, Father, who is now married and has a family of his own, spoke with an attorney to discuss pursuing custody of Children. Although Father did not initially take any legal action, three years later, he attempted to contact Mother in November 2012 by leaving a voicemail at her place of employment. The voicemail did not mention Children, and Mother did not return the call. Father filed for custody of Children the next month.

By stark contrast, Mother's father, M.D. (“Grandfather”), has been a significant part of Children's lives since their birth, assuming a father-like role beyond that of a typical grandfather and regularly sharing parental duties with Mother. Indeed, according to the orphans' court,

Grandfather has played a regular role in decision making in the boys ['] lives. Grandfather attended school conferences and has dealt with discipline issues as a team with Mother. Grandfather ha[s] traveled to doctor's appointment[s] with Mother. Grandfather and Mother have co-parented [Children.] Grandfather vacations with the boys. Grandfather assists in homework. Grandfather has disciplined the boys. Grandfather attends school functions with the boys. Grandfather has taken the boys to his place of employment and regularly along on jobs.... Grandfather has been [Children's] de facto father since birth.... Grandfather and Mother together have raised the boys. Grandfather's role in the children's lives extends far beyond the role of a typical grandparent. Grandfather is clearly one half of the parental unit that has raised the children. Grandfather's authority, control and influence over the children is equal to that of Mother.

Orphans' Court Opinion, 8/19/13, at 4. Grandfather's close relationship with Children continued even after Mother moved out of her parents' home in August 2006, and he has provided significant financial support to Mother, allowing Mother to live free of charge in his other home, also located in Lycoming County.

In response to Father's custody action, Mother and Grandfather filed a Petition for Involuntary Termination of Parental Rights and Adoption on January 29, 2013, and an amended petition on February 28, 2013. Therein, Mother and Grandfather argued that Father's parental rights over Children should be terminated pursuant to Section 2511 of the Adoption Act because Father had evidenced a settled purpose of relinquishing his parental claims over Children and refused to perform parental duties for seven years. With regard to the Act's requirement that the termination petition be filed in contemplation of an adoption, see 23 Pa.C.S. § 2512(b)

, Mother and Grandfather also averred that they anticipated that Grandfather would adopt Children and co-parent with Mother.

The orphans' court conducted a hearing on the petition on August 13, 2013. In support of their petition, Mother and Grandfather testified regarding Grandfather's extensive involvement with Children and Father's concomitant lack of involvement in Children's lives, noting that Children, then almost 10 years old, did not know that Father existed until shortly before the hearing. Additionally, Mother explained that, although she eventually changed her telephone number, Father was aware of her prior address, which remained unchanged from August 2006 to 2010, and Father knew how to contact her parents, but failed to do so. Grandfather, for his part, expressed concern about providing for Children's education and financial future, stating that his present job as a college instructor would allow Children to attend college free of tuition if he were permitted to adopt them. Grandfather also explained that he had contemplated adopting Children for years, but claimed that he “didn't see a need” to proceed with the adoption earlier, as there had been no foreseeable threat that Father would seek custody. N.T., 8/13/13, at 27. In his defense, Father testified that he did not send Children cards or gifts because he was not sure if Mother's address had changed. Father also explained that he sought custody in order to become more involved in Children's lives and to form a relationship with them.

By way of background, Section 2511(a) of the Adoption Act provides statutory grounds for terminating a parent's rights to his or her child where any one of the nine enumerated grounds for termination is established by clear and convincing evidence, including, as relevant herein, “[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.” 23 Pa.C.S. § 2511(a)(1)

. If the trial court finds the existence of one of the grounds for termination set forth in Section 2511(a), the court must then consider whether termination would best serve “the developmental, physical and emotional needs and welfare of the child” under Section 2511(b). Id. § 2511(b). The trial court may grant a termination petition if it is satisfied that termination of the parent's rights is consistent with the best interests of the child.

Section 2512(a) of the Adoption Act sets forth the parties who may file a petition for involuntary termination, including, inter alia, a parent or an agency. Id. § 2512(a)

. In contrast to an agency petition, a parent petitioning to terminate the rights of the child's other parent must file a termination petition containing “an averment that the petitioner will assume custody of the child until such time as the child is adopted. ”¹

Id. § 2512(b) (emphasis added). Thus, the petitioning parent must demonstrate that an adoption of the child is anticipated in order for the termination petition to be cognizable. See

In re B.E., 474 Pa. 139, 377 A.2d 153, 155 (1977) ; In re Adoption of L.J.B., 610 Pa. 213, 18 A.3d 1098, 1107 (2011) (plurality). Section 2512(b)'s adoption requirement is consistent with the rationale behind permitting the involuntary termination of a parent's rights, which we have explained 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,” rather than “to punish an ineffective or negligent parent, or provide a means for changing the surname of the child.” B.E., 377 A.2d at 155 ; L.J.B., 18 A.3d at 1108 (quoting B.E. ).

Because a termination petition filed by one parent against the other must occur in the context of an anticipated adoption, and because adoption is a statutory right, we note that the parent seeking termination must strictly comply with all pertinent provisions of the Adoption Act in order for the adoption to be valid. See In re Adoption of R.B.F., 569 Pa. 269, 803 A.2d 1195, 1199 (2002)

(“To effect an adoption, the legislative provisions of the Adoption Act must be strictly complied with.”). While the Adoption Act provides that “[a]ny individual may become an adopting parent,” 23 Pa.C.S. § 2312, relevant to the instant matter, Section 2711 of the Act requires the parent seeking termination to consent to the adoption and to relinquish his or her parental rights. Id. § 2711(a)(3) (requiring consent to adoption by the parent of an adoptee who is under 18 years of age); § 2711(d)(1) (setting forth contents of consent, including the statement “I understand that...