IN RE: ADOPTION OF: C.M., A MINOR
No. 1 MAP 2021
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
July 21, 2021
[J-30-2021]
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
APPEAL OF: B.M., MOTHER AND D.M. AND P.M., MATERNAL GRANDPARENTS
Appeal from the Order of Superior Court at No. 3060 EDA 2019 dated September 3, 2020, reconsideration denied October 14, 2020, Reversing the Decree dated September 27, 2019 by the Montgomery County Orphans’ Court at No. 2019-A0053 and Remanding.
ARGUED: April 14, 2021
OPINION
DECIDED: July 21, 2021
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., 145 A.3d 1117 (Pa. 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
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
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
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
Grandfather testified he understands Mother‘s prognosis can be debilitating and fatal, but aside from a couple of bad days, Mother has had no problems caring for C.M., and there is no plan for Mother to move out or change roles following the adoption. Id. at 11, 13-14, 24, 27-31. Regarding his reason for wanting to adopt C.M., he stated, “I just want to make sure she‘s well taken care of and a [sic] stable home with us. We want to be consistent with her routines in life and what she knows, with a loving family.” Id. at 14. Responding to why it was important to secure C.M.‘s fate through adoption, he stated, “I would have no faith in [Father] after the first three years of her life not wanting to participate with her, and me and my wife having brought her up from when she was a baby” and “[w]e just want to make sure with education, she‘s properly taken care of, all of her wants and needs.” Id. Asked why the adoption was in C.M.‘s best interests, he stated, “[t]he consistency in her life right now. She is thriving where she‘s at. She is just surrounded by a loving family, aunts, uncles. Anybody in our family would do anything for her.” Id. at 23.
Father testified, as a result of his active military duty in 2014, he has PTSD and a hip injury which required two surgeries; he receives veterans’ benefits and disability payments due to the hip injury, and these are his only income sources. N.T. 6/10/2019 at 20-22, 25, 37, 43-53; N.T. 7/17/2019 at 101-05, 124-25, 146. He testified that each time he attempted to contact Mother, she either would not answer, or told him he was not C.M.‘s father and hung up the phone; however, Father also conceded Mother had said he was not “a” father, and “just a sperm donor,” and the orphans’ court found him not credible regarding any of his testimony he questioned paternity. N.T. 6/10/2019 at 55-56, 65-67, 106-07, 117; N.T. 7/17/2019 at 130-31; Orphans’ Court Opinion, 9/26/2019, at 6. Father testified he believed Mother would attempt to raise harassment charges against him if he made more contact as a result of a phone call he received; the orphans’ court found this claim to lack specificity and corroboration. Orphans’ Court Opinion, 9/26/2019, at 5. Father did file to enforce custody of his older children when they were small, which he achieved through agreement with their mother and without legal assistance; he admits he knew how to pursue custody of C.M., but did not do so until February of 2019, then
Father further testified he received photos and learned about C.M.‘s activities through his aunt who was in contact with Mother, and he wanted to begin seeing C.M. gradually, amenable to a supervised setting. N.T. 7/17/2019 at 71-72, 115, 118-19. Following his receipt of the conciliator‘s April 3, 2019 report, Father began researching options for reconciliation or reunification therapy with C.M., and made arrangements for a VA program to subsidize a private therapy provider at no cost to Father or Mother. N.T. 6/10/2019 at 76-81. Father then received Grandparents’ petition to terminate his parental rights in mid-April, and the therapy never began. N.T. 6/10/2019 at 11; N.T. 7/17/2019 at 97. Father agreed he had not been a father to C.M. in 2017 and 2018, and she had no bond with him.3 N.T. 6/10/2019 at 109; N.T. 7/17/2019 at 143.
The orphans’ court believed “[t]he first factual question requiring resolution is whether the birth father, for a period of more than six months, has failed or refused to perform parental duties[,]” and — noting Father took no steps through legal channels to seek custody or visitation of C.M. in 2016, 2017, or 2018 despite having done so successfully, without the aid of an attorney, for his older two children — concluded Father failed and refused to parent C.M. for a period of over two years. Orphans’ Court Opinion, 9/26/2019, at 2-5.
The orphans’ court then considered Father‘s explanation for his failure to parent his child, while noting settled jurisprudence requires a parent to affirmatively perform parental duties and exercise reasonable firmness in the face of obstacles to maintaining a place of importance in a child‘s life. Id. at 2, 5-10, citing, inter alia, Matter of Adoption of Charles E.D.M., II, 708 A.2d 88, 92 (Pa. 1998) (if evidence establishes failure to perform parental duties or settled purpose of relinquishing parental rights, the court must consider (1) the parent‘s explanation for his or her conduct; (2) the post-abandonment contact between parent and child; and (3) the effect of termination of parental rights on the child pursuant to
[i]t is true that birth mother decided that she did not wish to continue a relationship with birth father and that after six or seven visits in 2016, she decided
that she did not wish her child to have visits with the birth father. It is true that she did not answer all of his phone calls and communicated to him that she did not need his help and did not consider him to be acting as a father to her daughter, and that she did not desire any further communication from him. Nevertheless, birth father testified that he only tried to call her on two occasions in 2016 and 2017. He made no other efforts whatsoever to see or support his child. Even though he had successfully filed a petition as a self-represented litigant seeking visits with his two older children, and thus knew how to file such a complaint, he took no such action to file a custody complaint with respect to this child until she was over three years old in February of 2019. While mother was not cooperative with father and did not make it easy for him to see this child, this court simply cannot conclude that two phone calls in over two years constitute a diligent effort to act as a father.
Id. at 9-10. The orphans’ court thus determined Father did not exercise reasonable firmness to establish a relationship with C.M. and there was no post-abandonment contact with the child for the court to consider. The court further concluded clear and convincing evidence demonstrated grounds to terminate his parental rights pursuant to
Addressing Father‘s argument the proposed adoption was a contrived effort to deprive him of his parental rights, the orphans’ court found the testimony of Mother and Grandfather credible regarding their reasons for seeking the adoption, i.e., in light of Mother‘s diagnoses “which are debilitating and may prove fatal[,]” the proposed adoption would provide C.M. with the stability of being raised by family members who have cared for C.M. since birth. Id. at 10. Citing Father‘s testimony admitting he shared no parental bond with C.M., the court further determined C.M. would suffer no detriment as a result of the termination of Father‘s rights, and the proposed adoption arrangement would best meet C.M.‘s needs and welfare “under the unusual circumstances” of Mother‘s medical condition and voluntary relinquishment of her own rights to allow the adoption to proceed, thereby meeting the Act‘s additional requirements under
Father appealed, and in the pertinent part of his Rule 1925(a) statement of errors, he generally challenged the sufficiency and weight of the evidence relied on to terminate his parental rights pursuant to
In an unpublished opinion, a divided panel of the Superior Court vacated the order terminating Father‘s parental rights. In re Adoption of C.M., 3060 EDA 2019, 2020 WL 5269235 (Pa. Super., Sept. 3, 2020) (unpublished memorandum). The panel majority did not address Father‘s claim the evidence was insufficient to support the involuntary termination of his parental rights, but instead viewed his argument that the termination did not promote the legislative intent of the Adoption Act as implicating a preliminary question of whether a valid proposed adoption was before the orphans’ court. Id. at *4. The majority regarded the case as “an unrestrained custody dispute that belongs in family court,” and opined the termination of Father‘s parental rights to effect the
The majority explained M.R.D. involved a similar issue, i.e., the involuntary termination of a father‘s parental rights to allow the maternal grandfather to adopt the grandchildren he helped to raise, except the unmarried mother in that case sought to retain her own parental rights. Id. at *6. The M.R.D. Court reversed the termination of father‘s parental rights, reasoning, in part, “‘[t]he purpose behind the termination or relinquishment of an existing parent‘s rights prior to an adoption is to facilitate a new parent-child relationship between the child and the adoptive parent, and to protect the integrity and stability of the new family unit‘” and, “‘[t]hus, where no new parent-child relationship is contemplated, the involuntary termination of parental rights is not permitted under the Adoption Act.‘” Id. at *7 (emphasis omitted), quoting M.R.D., 145 A.3d at 1120, 1127-28. The M.R.D. Court additionally commented that permitting the grandfather to adopt and co-parent children as a legal parent along with mother would “open the door for misuse of adoption proceedings by spiteful parents as a means to involuntarily terminate the rights of unwanted parents[,]” and, “[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., quoting M.R.D., 145 A.3d at 1129. Relying on these statements from the majority opinion in M.R.D., and noting the orphans’ court specifically endorsed the credibility of Mother‘s and Grandfather‘s testimony — which indicated Mother‘s parental role would not change as a result of the adoption, and Mother did not consider attempting to terminate Father‘s parental rights until he attempted to enforce them — the panel majority concluded the termination of Father‘s rights in anticipation of adoption by C.M.‘s grandparents was against public policy pursuant to M.R.D., both because it was gamesmanship triggered by Father‘s custody claim to exclude Father if Mother‘s health falters, and because the proposed adoption would not create a new family unit or new parent-child relationship. Id. at *5-8, *8 n.9.
Judge Pellegrini dissented, viewing the majority‘s opinion as improperly adding a public policy requirement to the Adoption Act, specifically, that the proposed adoption must form a “new family unit,” where no such requirement appears in the text of the statute. Id. at *9, *11, *12 (Pellegrini, J., dissenting). The dissent distinguished M.R.D., observing the discrete issue in that case was whether the mother could be excused from the Act‘s requirement that her parental rights be terminated in order to free the children for adoption. The dissent noted the M.R.D. Court recognized mother had to show the circumstances met the “cause” exception to the Act‘s requirements pursuant to
We granted the petition for allowance of appeal filed by Mother and Grandparents (together, appellants) to consider the propriety of the Superior Court‘s decision, and specifically to consider whether the panel majority misapplied the holding of M.R.D., or improperly disturbed the factual and credibility findings of the orphans’ court to discern the proposed adoption was custody gamesmanship. In re Adoption of C.M., 243 A.3d 970 (Pa. 2021) (per curiam).
II. Arguments
Appellants argue M.R.D. involved only “‘whether a parent and a grandparent ... may establish cause under
Child‘s counsel advances substantially similar arguments on behalf of C.M., agreeing with appellants that the orphan‘s court specifically and deliberately considered, addressed, and rejected Father‘s claim the adoption was contrived or pretextual based upon the evidence, and further arguing the panel majority‘s reversal of that determination supplants its own interpretation of the significance of Father‘s custody filing after his lengthy absence, reflecting a departure from judicial standards and undermining the trial court‘s role as factfinder. Child‘s Counsel‘s Brief at 16. Child‘s counsel asserts the panel‘s holding sets a problematic precedent which would prevent grandparents or other kinship caregivers from adopting the children in their care if a natural parent whose rights are terminated or relinquished remains involved, impacting not only cases like C.M.‘s, but also the myriad of cases involving children whose parents are afflicted by other incapacities such as parental substance abuse, mental illness, incarceration, or domestic violence, or which result from child abuse or neglect. Id. at 17-19.
In response, Father acknowledges the ultimate legal issue addressed in M.R.D. involved the Adoption Act‘s cause exception which is not invoked in this case due to Mother‘s voluntary relinquishment; however, he argues there is otherwise no considerable factual difference due to Mother‘s admission her maternal role will not change as a result of her forfeiture of parental rights. Appellee‘s Brief at 10. He characterizes this case as the next step in an evolution of cases striking down one parent‘s efforts to evade custody court and dispose of unwanted involvement by the other parent. Specifically, Father points to B.E., where an unmarried mother petitioned to terminate the father‘s rights with no proposed adoption pending, and M.R.D., where an unmarried mother petitioned to terminate the father‘s rights, while retaining her own, with maternal grandfather as the proposed adoptive co-parent; in both cases, this Court rejected the petitioning parent‘s attempts, and Father requests we likewise “rebuff Mother‘s attempt to terminate his parental rights in retaliation for his pursuit of custody and in promotion of an adoption which fails to create any new familial roles or relationships.” Id. at 11-13, citing B.E., 377 A.2d at 154-56 (termination of parental rights not permitted where no adoption was pending; purpose of involuntary termination provisions of Adoption Act “is not to punish an ineffective or negligent parent“); M.R.D., 145 A.3d at 1118, 1129-30 (upholding
Furthermore, Father asserts the custody gamesmanship he and the panel majority describe would have been thwarted had the orphans’ court not erred by concluding there was clear and convincing evidence to terminate Father‘s parental rights pursuant to
Father further argues his actions and delay in filing for custody “may not be commendable, [but] were reasonable given his circumstances, particularly in light of Mother‘s resolve to keep Father out of the child‘s life[,]” as well as his incarceration, hospitalization, inability to have visits with minors at his transitional housing program, and limited income of VA benefits and military disability. Id. at 23-25, citing In re Adoption of C.M.W., 603 A.2d 622, 626 (Pa. Super. 1992) (court “cannot sanction termination of the rights of imperfect parents” absent “clear intent to relinquish his rights[;]” court cannot permit such intrusion into the child‘s rights, including “the right to know her father with all his flaws“) (internal citation, quotation,
III. Analysis
A parent‘s right to make decisions concerning the care, custody, and control of his or her children is among the oldest of fundamental rights. In re D.C.D., 105 A.3d 662, 667 (Pa. 2014); Troxel v. Granville, 530 U.S. 57, 65 (2000), citing, inter alia, Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) (“liberty” protected by Due Process Clause includes right of parents to “establish a home and bring up children” and “to control the education of their own“). The time-tested law of the Commonwealth requires that we balance this intrinsic parental interest within the context of a child‘s essential needs for a parent‘s care, protection, and support. See, e.g., In re T.S.M., 71 A.3d 251, 271 (Pa. 2013) (children‘s needs and welfare necessitated termination of parental rights despite strong but damaging bonds). We readily comprehend the significant gravity of a termination of parental rights, which has far-reaching and intentionally irreversible consequences for the parents and the child. See In re P.G.F., 247 A.3d 955, 963 (Pa. 2021); B.E., 377 A.2d at 155-56 (purpose of termination of parental rights is to allow for adoption); see also T.S.M., 71 A.3d at 268 (termination of parental rights creates legal orphans). For these reasons, the burden of proof is upon the party seeking termination to establish by “clear and convincing” evidence the existence of the statutory grounds for
doing so. Matter of Adoption of G.T.M., 483 A.2d 1355, 1356 (Pa. 1984); In re T.R., 465 A.2d 642, 642-43 (Pa. 1983) (applying the standard articulated in Santosky v. Kramer, 455 U.S. 745 (1982)). “[C]lear and convincing evidence is defined as testimony that is so ‘clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue.‘” Charles E.D.M., 708 A.2d at 91, quoting Adoption of Atencio, 650 A.2d 1064, 1066 (Pa. 1994). Because of this serious impact attending the termination of parental rights, “it is important that a judicial decree extinguishing such rights be based solely on competent evidence.” In re A.J.R.-H., 188 A.3d 1157, 1171 (Pa. 2018), quoting In re Sanders Children, 312 A.2d 414, 417 (Pa. 1973).In cases concerning the involuntary termination of parental rights, appellate review is limited to a determination of whether the decree of the termination court is supported by competent evidence. See In re Adoption of L.J.B., 18 A.3d 1098, 1107 (Pa. 2016) (Opinion Announcing the Judgment of the Court), citing Adoption of B.D.S., 431 A.2d 203, 207 (Pa. 1981). This standard of review corresponds to the standard employed in dependency cases, and requires appellate courts to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but it does not require the appellate court to accept the lower court‘s inferences or conclusions of law. See In re Adoption of S.P., 47 A.3d 817, 826 (Pa. 2012); In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). That is, if the factual findings are supported, we must determine whether the trial court made an error of law or abused its discretion. See S.P., 47 A.3d at 826. An abuse of discretion does not result merely because the reviewing court might have reached a different conclusion; we reverse for an abuse of discretion “only upon demonstration of manifest unreasonableness, partiality, prejudice, bias, or ill will.” Id. Thus, absent an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court‘s decision, the decree must stand. See id. at 821; Atencio, 650 A.2d at 1066. “We have previously emphasized our deference to trial courts that often have first-hand observations of the parties spanning multiple hearings.” T.S.M., 71 A.3d at 267. However, “[w]e must employ a broad, comprehensive review of the record in order to determine whether the trial court‘s decision is supported by competent evidence.” S.P., 47 A.3d at 821 (internal citation and quotation omitted).
Subsections 2511(a) and (b) of the Adoption Act set forth the grounds a petitioner must prove in order for the court to grant an involuntary termination of parental rights. See
With these settled principles in mind, we turn to the issues presented in the matter before the Court.
A. M.R.D.8
As the parties and the opinions of the panel below describe, this Court‘s
Specifically anticipating a situation such as the one now before us, the M.R.D. Court stated, ”[i]f Mother had desired to relinquish her rights to Children, and assuming arguendo that an adoption by Grandfather and the termination of Father‘s parental rights were in Children‘s best interests, Grandfather would be permitted to adopt Children, and termination of Father‘s parental rights would have been proper, ending our inquiry.” Id. at 1126 (emphasis added). In addition, as keenly observed by then-Justice, now Chief Justice Baer in his
Having determined the panel below improperly applied the M.R.D. cause analysis principles in this case, we now consider its invocation of M.R.D.‘s admonition against gamesmanship. Commenting on the broader foreseeable consequence of allowing the maternal grandfather in M.R.D. to adopt and become the legal parent of his grandchildren while his daughter retained her legal parental rights and obligations — when the Adoption Act anticipates a parent‘s retention of her rights only in an adoption by a spouse — we observed such an exception to the Act‘s provisions 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 . . . 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. Given 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.
M.R.D., 145 A.3d at 1129 (internal citations and quotations omitted). The “gamesmanship” of potentially any third party standing in as an adoptive parent, as forecast in M.R.D., is perhaps a more nuanced quagmire than the retributive filing of a termination of parental rights petition described by Father and the panel majority in the present case, but we recognize the danger of approving such petitions filed in the midst of acrimonious custody battles or in short sequence after a non-custodial parent files a complaint in custody, as was the case in M.R.D. though it was not then an issue before the Court. See id. at 1118; id. at 1134-35 (Wecht, J., concurring) (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[;]” custody court has “robust discretionary authority” to limit or curtail a parent‘s custody rights “without resort to the draconian remedy of termination of parental rights under the adoption laws“); see also L.J.B., 18 A.3d at 1110 (Opinion Announcing the Judgment
Nevertheless, to the extent the panel majority relied upon aspects of the record not addressed by the orphans’ court to conclude the termination and adoption petitions constituted reversible custody gamesmanship — in contravention of the orphans’ court‘s specific determination that credible testimony demonstrated the proposed adoption was not contrived, and without further analysis — it did so in error.9 See S.P., 47 A.3d at 826-27 (“[E]ven where the facts could support an opposite result, as is often the case in dependency and termination cases, an appellate court must resist the urge to second guess the trial court and impose its own credibility determinations and judgment; instead we must defer to the trial judges so long as the factual findings are supported by the record and the court‘s legal conclusions are not the result of an error of law or an abuse of discretion.“); Adoption of S.H., 383 A.2d 529, 532 & n.2 (Pa. 1978) (task of the orphans’ court is to resolve conflicting testimony of witnesses; appellate court may not reweigh the credibility of witnesses).
We acknowledge the solemn reality that a decree terminating parental rights is widely regarded as the civil law equivalent to the death penalty, forever obliterating the fundamental legal relationships between parent and child. See, e.g., Kimock v. Jones, 47 A.3d 850, 855 (Pa. Super. 2012) (“termination of parental rights for all practical purposes ends the parent/child relationship as unequivocally as the death of the child“) (emphasis omitted); Administrative Office of Pennsylvania Court‘s Office of Children and Families in the Courts, Pennsylvania Dependency Benchbook, “Termination of Parental Rights” at § 17.1 (3d ed. 2019) (Termination of parental rights “has often been called the ‘death penalty’ of dependency court, because of the seriousness and finality of a termination order severing all ties between a child and the biological parents.“). Where simultaneously litigated custody matters conjure the specter of gamesmanship in a termination proceeding, such a significant final decree warrants the courts’ closest consideration of whether competent evidence clearly and convincingly proves the precise elements of the grounds at issue, in a manner “so clear, direct, weighty and convincing” it betrays no hesitance regarding the truth of the facts in issue.10 Charles E.D.M., 708 A.2d at 91 (internal citation and quotation omitted).
In this case, Father accurately asserts he preserved his claim challenging the sufficiency of the evidence underlying
We have explained, appellate review is a review of “the judgment or order before the appellate court, rather than any particular reasoning or rationale employed by the lower tribunal[,]” A.J.R.-H., 188 A.3d at 1176 (internal citation and quotation omitted); therefore, this Court has discretionary authority to affirm an order of a lower court “for any valid reason appearing from the record[,]” Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (2009). See also A.J.R.-H., 188 A.3d at 1176, quoting Sec. & Exch. Comm‘n v. Chenery Corp., 318 U.S. 80, 88 (1943) (“‘The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate.‘“). Father, as appellee in this Court, was not aggrieved by the Superior Court‘s judgment and was therefore not required to file a cross-petition for allowance of appeal to protect his unaddressed sufficiency claim. See Lebanon Valley Farmers Bank v. Commonwealth, 83 A.3d 107, 113 (Pa. 2013) (“Protective cross-appeals by a party who received the relief requested are not favored.“). Despite the fact that a considerable portion of Father‘s present argument is devoted to the sufficiency of the evidence underlying the termination of his parental rights, neither the appellants nor child‘s counsel submitted a reply brief providing further response to the claim. Moreover, C.M., who was three years old at the onset of this litigation, will be grade-school age by the filing of this decision; we are ever-mindful “[c]hildren are young for a scant number of years, and we have an obligation to see to their healthy development quickly.” T.S.M., 71 A.3d at 269. Given the complete record forwarded from the court below, the very nature of this case, in which the proper legal status of a child has swayed in the balance for over a third of her lifetime, weighs heavily in favor of a final resolution without further delay.11 See R.R.M, 786 A.2d at 185. We therefore turn to the merits of Father‘s insufficiency claim.
B. Sufficiency of the Evidence
A petitioner seeking to prove grounds for termination under Subsection 2511(a)(1) must demonstrate by competent, clear and convincing evidence, “[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
Though we do not adhere to any strict definition of “parental duty,” a child has a right to essential parental care, and our jurisprudence reveals certain irreducible qualities of a parent‘s attendant obligation. Foremost, it is a positive duty requiring affirmative performance. In re Bowman, 666 A.2d 274, 279 (Pa. 1995) (opinion in support of reversal), quoting In re Adoption of Smith, 194 A.2d 919, 922 (Pa. 1963). “[C]ommunication and association are essential to the performance of parental duty[.]” In re K.Z.S., 946 A.2d 753, 761 n.2 (Pa. Super. 2008), quoting In re Adoption of Faith M., 501 A.2d 1105, 1108-09 (Pa. 1985). “[P]arental duty requires that a parent exert himself to take and maintain a place of importance in the child‘s life.” In re Adoption of R.W.G., 431 A.2d 274, 277 (Pa. 1981), quoting In re Burns, 379 A.2d 535, 540 (Pa. 1977) (internal citations and quotation omitted). A parent must “exercise reasonable firmness” in resisting obstacles placed in the path of maintaining the parent-child relationship, or his “rights may be forfeited.” S.P., 47 A.3d at 828, quoting In re Adoption of McCray, 331 A.2d 652, 655 (Pa. 1975). “Parental rights are not preserved by waiting for a more suitable or convenient time to perform one‘s parental responsibilities while others provide the child with his or her physical and emotional needs.” In re Adoption of C.J.A., 204 A.3d 496, 504 (Pa. Super. 2019), quoting B., N.M., 856 A.2d at 855; Adoption of Smith, 194 A.2d at 922.
However, even where the evidence clearly establishes a parent has failed to perform affirmative parental duties for a period in excess of six months, the court “must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting the involuntary termination [of parental rights].” Orwick, 347 A.2d at 680; see Charles E.D.M., 708 A.2d at 92; Atencio, 650 A.2d at 1066; Bowman, 666 A.2d at 276 (opinion in support of reversal). We have consistently emphasized “the law regarding termination of parental rights should not be applied mechanically but instead always with an eye to the best interests and the needs and welfare of the particular children involved.” T.S.M., 71 A.3d at 268-69; see Bowman, 666 A.2d at 276 n.2 (opinion in support of reversal) (legislature‘s use of the term “at least six months” indicates evidence of parental conduct preceding the six-month period may be considered), see also Baby Boy A. v. Catholic Social Services, 517 A.2d 1244, 1247 (Pa. 1986) (“Once we have determined that the statutory grounds for involuntary termination of parental rights have been proved, it is the child‘s welfare that is paramount.“) (internal citation and quotation omitted). In this vein, a wealth of Superior Court jurisprudence instructs trial courts deciding Subsection 2511(a)(1) cases to consider the whole history of a given case and “not mechanically apply the six-month statutory provision[,]” although “it is the six months immediately preceding the filing of the petition that is most critical to the analysis.” B., N.M., 856 A.2d at 855; see also In re D.J.S., 737 A.2d 283, 286 (Pa. Super. 1999) (same); C.J.A., 204 A.3d at 504 (same); In re Adoption of Hamilton, 549 A.2d 1291, 1294 (Pa. Super. 1988) (“Pennsylvania courts have wisely
In further consideration of the totality of circumstances, if competent evidence establishes the statutory criteria under Subsection 2511(a)(1), we then require three lines of inquiry: (1) the parent‘s explanation for his or her absence; (2) the post-abandonment contact between parent and child, including a parent‘s efforts to re-establish contact; and (3) consideration of the effect of termination of parental rights on the child pursuant to Subsection 2511(b). See Charles E.D.M., 708 A.2d at 92 (addressing three lines of inquiry and reversing termination of parental rights where record contained no evidence of anticipated effect on children‘s well-being), citing, inter alia, Atencio, 650 A.2d at 1066-67 (upholding orphans’ court‘s denial of termination of father‘s rights where mother refused correspondence, gifts, and phone calls from father to child, and would not permit child to visit father along with siblings), Hamilton, 549 A.2d at 1295-96 (reversing termination where trial court failed to consider father‘s legal efforts to enforce visitation for three years following two years of absence, and record did not suggest termination was necessary or served child‘s welfare). Unlike grounds for termination predicated on incapacity of the parent, the focus under Subsection 2511(a)(1) is not the degree of success a parent may have had in reaching the child, but examines whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship. See S.P., 47 A.3d at 828, 830; see also In re Z.P., 994 A.2d 1108, 1117 (Pa. Super. 2010) (“[W]hile sincere efforts to perform parental duties[ ] can preserve parental rights under subsection [2511](a)(1), those same efforts may be insufficient to remedy parental incapacity under subsection [2511](a)(2).“) (internal citation and quotation omitted); In Interest of D.F., 165 A.3d 960 (Pa. Super. 2017) (same), appeal denied, 170 A.3d 991 (Pa. 2017) (per curiam); In re D.J.Y., 408 A.2d 1387, 1390 (Pa. 1979) (“A finding of abandonment will[ ] not be predicated upon parental conduct which is reasonably explained or which resulted from circumstances beyond the parent‘s control. It may only result when a parent has failed to utilize all available resources to preserve the parental relationship.“) (internal citations, quotations, and ellipses omitted); In re M.A.K., 414 A.2d 1052, 1054 (Pa. 1980) (termination not warranted where competent evidence supported finding parent‘s mental health crisis following traumatic event caused temporary failure to perform parental duties); B.D.S., 431 A.2d at 207 (where custodial parent prevents contact, noncustodial parent‘s performance must be measured in light of what would be expected by an individual under similar circumstances of the parent).
Furthermore, while the inquiry at every step must assess the absent parent‘s exercise of reasonable firmness to obstacles, we strenuously condemn obstructive conduct by the noncustodial parent seeking termination. See B.D.S., 431 A.2d at 208 (“[O]bstructive behavior on the part of the custodial parent aimed at thwarting the other parent‘s maintenance of a parental relationship will not be tolerated, and certainly will not provide a sound basis for the involuntary termination of parental rights.“); S.H., 383 A.2d at 532-33 (where evidence showed custodial parent “consistently attempted at all times to prevent the [non-custodial parent] from . . . exercising any parental rights[,]” the fact parent “could conceivably have pursued legal action more promptly cannot justify termination“). Finally, should sufficient evidence not exist to support the necessity of the termination decree, the trial court will be
Applying these foundational tenets to the involuntary termination of Father‘s parental rights, we conclude the orphans’ court‘s decree is not supported by sufficient competent evidence. As described supra, the court found Father failed to perform any parental duties for a period of more than six months — for a period of over two years from October 2016 to the date of the filing of the termination petition on April 15, 2019 — concluding “[t]wo isolated phone calls to birth mother in December of 2016 and November of 2017 do not demonstrate that birth father exercised reasonable firmness[,]” and “[a]s a result of father‘s failure to take further action to have contact with his child, there is no post-abandonment contact with the child for this court to consider.” Orphans’ Court Opinion, 9/26/2019, at 8, 10. The court drew an analogy to this Court‘s 1975 decision in Orwick‘s Adoption which, acknowledging the court‘s obligation to consider the totality of the circumstances, upheld the termination of the parental rights of a father whose extent of contact with the child included only one (returned) gift, two cards, and a $50 savings bond over the course of two years, observing the father had adequate financial means but did not exercise reasonable firmness and failed to support or visit the child for the twenty-two months just prior to the hearing. Id. at 9; see Orwick, 347 A.2d at 680-81. The orphans’ court acknowledged Father‘s February 19, 2019 attempted phone call to Mother and his subsequent custody petition, but the court ultimately reasoned Father had previously made no written follow up or legal action as a result of his two unsuccessful phone calls in 2016 and 2017. The court thus deemed Father‘s legal efforts were too late, as he had “sat on his rights” for more than two years. Id. at 11. Our careful review of the record and the relevant law reveals this was error.
Notably, at the time the Court decided Orwick, the relevant provision of the Adoption Act enabled involuntary termination of parental rights where the parent‘s “conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child, or has refused or failed to perform parental duties[,]” and made no reference to when the six month period was to commence or expire. Adoption Act of July 24, 1970, P.L. 620, 1 P.S. § 311(1) (emphasis added). Indeed, much of our case law has developed in response to this particular text, under which grounds for termination exist as the result of any six-or-more-month period of parental abdication of duty regardless of when during the child‘s lifetime it occurred, and thus necessitated the court‘s consideration of a parent‘s post-abandonment contact. See Bowman, 666 A.2d at 276 n.2. (opinion in support of reversal); see generally Hamilton, 549 A.2d at 1295. The General Assembly repealed and replaced that version of the law with the Adoption Act of October 15, 1980, P.L. 934, now codified at
The orphans’ court in this case set forth its first critical inquiry under
It is crystal clear, and of vital importance in the present case, that a parent‘s legal efforts to enforce custodial rights demonstrate affirmative performance of a positive parental duty. For example, in the Superior Court‘s oft-cited opinion, Adoption of Hamilton, a father petitioned the court for visitation following two years of inexplicable absence, which he was granted; he further successfully petitioned to enforce visitation when the mother did not cooperate, and when, two months later, the child‘s mother filed a petition to terminate the father‘s parental rights, which was granted, he successfully petitioned to continue visitation pending the termination matter. See Hamilton, 549 A.2d at 1295. The Superior Court reversed the decree, viewing the records from the custody court proceedings as evidence of the father‘s “affirmative demonstration of his intention to assume parental responsibilities[,]” despite his earlier two-year absence, and concluding the orphans’ court erred in not evaluating the father‘s post-abandonment behavior.13 Id. Hence, though an appropriate analysis will differ from case to case, when undertaken in earnest to establish meaningful contact with a child who is otherwise withheld from access by the custodial parent, a noncustodial parent‘s legal attempts to enforce custodial rights will usually be highly relevant evidence. See id. (analysis must also include whether parent‘s attempt to reaffirm parental duties after a period of
Importantly, we are also intensely cognizant of the duplicity enfranchised when a custodial parent‘s conduct both causes the need for legal intervention and faults the noncustodial parent for failing to take legal action more swiftly, and we are loath to require a parent‘s prosecution of legal proceedings as a mechanism for preserving parental rights. See D.J.Y., 408 A.2d at 1390 (where absence of communication results from deliberate conduct of the opposing parent, failure to pursue legal action may not be used as a basis for termination of parental rights); S.H., 383 A.2d at 533 (“mere showing that [noncustodial parent] could conceivably have pursued legal action more promptly cannot justify termination“).
In this case, two months prior to the April 15, 2019 filing of the termination petition, Father attempted contact, Mother refused, and in response, on February 28, 2019, Father initiated and actively pursued a complaint for custody, seeking a visitation arrangement that could gradually increase to shared custody. Father‘s perception this action was his only remaining option to establish a relationship with C.M. is buttressed by the orphans’ court‘s recognition of Mother‘s settled resistance to a relationship between Father and C.M. since his last visit in 2016. See Orphans’ Court Opinion, 9/26/2019, at 8, 9-10, supra. Father attended the court-ordered mediation and conciliation proceedings, suggesting he begin contact gradually, and complied with the court‘s requirements in the support case until Mother withdrew her complaint. Because no agreement was reached through mediation or conciliation, Father had no contact with C.M. during that time. The custody conciliator issued a report on April 3, 2019, and Father began arranging his veterans’ benefits to secure reunification therapy with C.M. But, before the custody matter and Father‘s contact with C.M. could progress any further, appellants filed their termination petition.
Thus, consistent with Hamilton, despite Father‘s prior lengthy absence, his proactive participation in the custody court‘s measured requirements during the time the case was active demonstrates affirmative performance of Father‘s parental duties to the maximum extent apparent at the time under these circumstances, as well as an interest in and respect for the young child‘s safety and emotional needs. The orphans’ court‘s finding Father “fail[ed] to take further action to have contact with his child” is not supported by the record, and conflicts with the court‘s additional finding the action he did take to attempt contact — i.e., pursuing a legal proceeding to enforce his custodial rights — was too late, which conclusion is not supported by the law. Orphan‘s Court Opinion, 9/26/2019, at 10, 11; see D.J.Y., 408 A.2d at 1390; S.H., 383 A.2d at 533; Hamilton, 549 A.2d at 1295. These determinations were therefore erroneous. Consequently, because the record demonstrates Father continuously exercised parental duties during the two months preceding the filing of the petition, appellants did not meet their burden to establish by clear and convincing evidence he failed or refused to perform parental duties, or a settled purpose of relinquishment, for “a period of at least six months immediately preceding the filing of the petition.”
Because we conclude the orphans’ court failed to consider the requisite statutory period and the evidence during that period does not establish grounds for termination according to the express requirements of Subsection 2511(a)(1), further review of Father‘s explanation for his absence,14 and consideration of C.M.‘s needs and welfare pursuant to Subsection 2511(b), are not dispositive and do not compel our result in this case. However, given the rare occasion for this Court to engage in error review of such an important matter, and as a consequence of our broad scope of review, we make the following observations.
Unlike termination of parental rights cases stemming from dependency proceedings — in which the trial court often has observed the parties through multiple hearings over the course of several months or years, and which typically feature the somewhat objective testimony of at least one caseworker whose professional duties include, at a minimum, facilitating parents’ visits with the child and documenting parental efforts — when a parent pursues the termination petition as in this case, the record may be wholly comprised of the subjective testimony of one parent against another. Where the interests at stake for each witness are so uniquely fraught, such testimony is qualitatively different from the testimony provided in agency-initiated cases. Indeed, we would not fathom approving the termination of parental rights where an orphans’ court described an agency‘s response to a noncustodial parent‘s request for contact as it describes Mother‘s response in this case. Orphans’ Court Opinion, 9/26/2019, at 8 (“mother, through her rejection of his requests, contributed to his lack of contact with the child“), 10 (“mother was not cooperative with father and did not make it easy for him to see this child“); see, e.g., In Interest of T.J.J.M., 190 A.3d 618, 631 (Pa. Super. 2018) (reversing termination of parental rights where, inter alia, agency did not provide visits at times parent could reasonably attend). Yet the clear and convincing evidentiary standard remains the same. For this reason, specificity and corroboration are crucial to the foundation of competent evidence.
As one critical illustration, the orphans’ court relied on the credible testimony of Mother regarding her medical conditions, which it found were “debilitating and may prove fatal,” to conclude the proposed adoption was suited to C.M.‘s needs and welfare under these “unusual circumstances.” Id. at 10; Orphans’ Court Opinion, 10/31/2019, at 3. Fully crediting Mother‘s testimony, as the orphans’ court did, establishes only that Mother‘s understanding of her illness and prognosis — that it might be fatal — was truthful, which is certainly relevant for the court‘s assessment of her motivations, but not competent to establish the diagnoses and prognosis are accurate or correct, particularly in light of further testimony indicating not much is known about scleroderma, its impact varies, Mother resists researching it, and it currently provides little interference with her ability to care for C.M.15
In further contrast to dependency-related termination cases, which involve the ever-looming threat of harm to a child returned to parents who have already demonstrated an inability to provide proper basic care, there is no evidence or argument in this record suggesting any harm might befall C.M. in the event Father‘s custody case proceeds, or even that her current home environment and routine would change in any way. Unlike a child in foster care, C.M.‘s consequence is not zero-sum; she remains with her known family either way, but only one possible outcome to this litigation includes an opportunity to establish a meaningful relationship with her biological father and siblings. See Hamilton, 549 A.2d at 1296 (despite prospective second-parent adoption by custodial parent‘s spouse after father‘s two-year absence, “nothing in the record . . . suggests that termination of [father‘s] relationship with his daughter is necessary . . . [o]n the contrary, the record reveals [his] repeated petitions and assertions of visitation rights [with his daughter] have led to the resurgence of their father-daughter relationship“). As Justice Wecht insightfully observed in his concurring opinion in M.R.D., the custody court has robust discretionary authority to enforce the restriction or allowance of contact with Father in a manner curated to C.M.‘s best interests. See M.R.D., 145 A.3d at 1134-35 (Wecht, J., concurring). Custody proceedings additionally provide an opportunity to consider objective criteria by which to measure future performance of Father‘s parental duties should he again disappear from C.M.‘s world. Accordingly, we have significant difficulty viewing the evidence in this case as competent to establish the weighty and consequential conclusion that, faced with the possibility of the loss of Mother at some point in the future, C.M.‘s need for permanency requires the termination of Father‘s parental rights and the severance of his branch of the family tree. As a further result of our analysis, we strenuously encourage courts to view these life-altering cases through an appropriate lens in light of the substance and objectivity of the evidence presented, and always with an eye toward the individual child‘s best interests. See T.S.M., 71 A.3d at 269.
IV. Conclusion
For the foregoing reasons, we hold the evidence was insufficient to establish the grounds for termination of Father‘s parental rights pursuant to
Chief Justice Baer and Justices Saylor, Donohue and Mundy join this opinion.
Justice Todd files a concurring and dissenting opinion.
Justice Wecht files a concurring and dissenting opinion.