*1 remand, In terms of the on I would instruct the proceedings timely PCRA court to conduct a and hearing implement timely resolution of all issues of material fact via the disputed essential has fact-finding process. Appellant clearly proffered trial stewardship evidence his counsel rendered deficient See, at the and of his trial. guilt penalty stages capital e.g., (“I Affidavit of Trial Counsel at have no excuse for the preparation manner which I handled representation this trial. My only explanation, which is not meant as an excuse, First, I is two-fold: was substantial experiencing personal family health and this and I problems during period, give was unable to the kind of attention to this client that he deserved; second, I honestly my never believed that client could be convicted of first-degree realistically murder and that he have face possible penalty.”). would death Although deceased, attorney is now has Appellant support- included event, ing proffers in and I believe a hearing required. objection has no Notably, Commonwealth to such a hear- (“[T]he See Brief for at 3 ing. Appellee Commonwealth submits that a evidentiary remand for an would not be hearing if this so inappropriate prefers, might enhance review”). further
18A.3d1098 In re ADOPTION OF L.J.B.
Appeal C.L.F., Natural Mother.
Supreme Pennsylvania. Court of
Submitted Oet. 2010. April
Decided *4 Bass, Fromson, Amal Muñas Terry L. Philadelphia, Wom- Rulli, en’s Law Project, Louis Penn Legal Office, S. Assistance Curiae, for Appellant Services, Inc., Amicus Community Legal et al. Drier, Offices,
Marc Salo Drier Shore, & Dieter Law Jersey for S.M.B. and W.K.B. *5 P.C., Ad Lindsay, for Guardian Lindsay, Hall &
David Isaac Litem. EAKIN, BAER, TODD, C.J., SAYLOR,
CASTILLE, McCAFFERY, MELVIN JJ. ORIE THE JUDGMENT
OPINION ANNOUNCING THE COURT OF BAER.1 Justice in case to examine appeal this allowance granted
We in Pleas erred County Court of Common whether the Clinton to her a mother rights biological terminating child, and, determining in no in so further erred doing, the reasons that mother and child. For bond existed between Court, remand follow, Superior we vacate the order of for an immediate pleas case to the court of common this if the instant action is now hearing to determine evidentiary moot, the record while this of evidence on light placed Court, as discussed pending Superior was before appeal Moreover, proceedings future herein. we order nature, child, of their be conducted regardless concerning district, judicial appointed as via jurist from a different Pennsylvania the Administrative Courts. Office I. Factual and Procedural Histories Custody Proceedings
A. (Mother) L.J.B., was born to C.L.F. question, The child (Father) Father on 2001. Mother and August and S.M.B. time of but not married at the L.J.B.’s living together were birth, eleven months old. when L.J.B. was separated with a written separation, agreement their in accord Upon Father, with lived Moth- primarily between Mother and L.J.B. custody while Father half-siblings, enjoyed physical er and her on, Four months after the essentially, alternating weekends. (Step- Father married W.B. November of separation, mother), in the custody complaint and soon thereafter filed reassigned to this author. 1. This matter was Pleas, Clinton County Court of Common seeking increased physical After custody. substantial proceedings, on Novem- *6 19, 2003, ber Williamson, Honorable J. Michael President Judge of Clinton County, granted Father’s request for in- L.J.B., physical custody creased awarding him six consecu- tive days each during period. two-week further,
Before it proceeding is to what necessary detail was Father’s irresponsible conduct involving the child in his quest to undermine Mother’s custodial and parental It rights. necessary also as part of this discussion to what we specify respectfully view as an appearance of impropriety by Judge Williamson, presided who over the custody proceedings. (November
During the approximate year No- through 2003) vember that the custody proceedings between Father (and, essentially, Stepmother) and Mother were ongoing, the relationship between Father and Mother deteriorated signifi- fact, cantly. In on approximately six during occasions year, Father took L.J.B. to professionals medical claiming Mother had sexually child, abused the subjecting pelvic examinations and pelvic cleaning.2 Additionally, Father re- ported Mother to County Clinton Children and Youth Services (CYS) making course, same In allegations. due the physi- cians and CYS caseworkers involved determined that Father’s allegations were without merit. Eventually, Judge Williamson order, entered an 20, 2003, on October enjoining further unnecessary medical examinations of L.J.B.3 say "approximately We six” medical pelvic visits for exams and cleaning because the specify record does not the exact number. More- over, specify the record many does not how of these exams occurred in hospital emergency many rooms and how in doctors' In offices. regard, we appeal also note that this is an from the termination of rights, Mother's custody rather than from a determination. Thus, concerning the record custody proceedings, extensive includ- ing examinations, that of these medical only is before us because portions custody of the during record were entered an as exhibit course, termination only action. Of we recite from that which is in the presently record before us. occasion, 3. We note that on one physician Mother took L.J.B. to a for a examination; Mother, however, pelvic according to only she did this Mother, Accordingly, Father's insistence. the order was directed to as well toas Father. proceedings, of the 2002-2003 noted, conclusion upon As a final order on November entered Judge Williamson awarding custody, increased Father’s granting Moth- every period. two-week days out of him six continuous During Superior to the Court. this order appealed er sexually Mother of Father accused again of the appeal, course ex letter sent L.J.B., by way parte of an this time abusing Rather than disre- November 2004.4 Williamson on Judge communication, held Judge Williamson parte the ex gard allega- entertain Father’s 2004 to hearing on November a memorandum from CYS hearing, part tions.5 As that Father’s concluding Judge Williamson caseworker into the record. was entered were unfounded accusations 30, 2004, Judge Nevertheless, in an order dated November order to cease the continuous previous revoked his Williamson (and L.J.B., Father and permitted examinations of pelvic *7 Father) examinations subject L.J.B. to such only appears Dietrich. Henry Dr. upon pediatrician, an agreed Mother, year, of the next over the course According to behavior toward her. aggressive continued to exhibit Father threatened her over repeatedly related that Father Mother home, custody arrived at a followed her telephone, the handgun. January a .357 On of L.J.B. with loaded exchange modification, 25, 2006, this time sought custody Father again for Judge primary physical a with Williamson filing petition later, the days despite of the Two order custody child. Court, by way unpublished By point, Superior of an memo- 2004, 21, grant- had affirmed the order opinion filed October randum custody, finding Judge did not ing that Williamson Father increased timely petition subsequently filed a for abuse his discretion. Mother pending the November 9 ex reargument, which was when Father sent 17, 2004, Eventually, Superior on December parte communication. reargument petition. Court denied the noted, Superior the Novem- appeal before the Court from 5. As Mother's 19, hearing. While pending at the time of this ber 2003 order was still concerning Judge jurisdic- question Williamson’s an obvious this raises 24, hearing, transcript 2004 neither the tion to hold the November stemming We do hearing from it address this issue. nor the order actually Judge admonished Mother’s counsel note that Williamson Appellate hearing “stop fooling with the during around 802-02, (N.T.), Testimony Nov. Docket No. Courts....” Notes of 2004 at 17. 30, 2004, November further medical examinations Dietrich, only were to be conducted Dr. Father took L.J.B. emergency p.m. to an room 11:00 for what would be 2002. The eighth vaginal child’s examination since November examination, an with complete record reveals that intrusive exams, prior color was undertaken. As with the photographs, this one revealed no evidence of sexual or abuse. physical examination, January
After the sent a second CYS Williamson, in Judge memorandum to which threatened to an if “open investigation Stepmother] abuse con- [Father tinue to have the child or unnecessarily examined cleaned.” Moreover, Agency stated that it would “also request temporary change \e.g., visitation custo- custody/partial dy the course of the arrangement] during investigation.” (N.T.), 802-02, Testimony Notes of Docket No. Feb.
at 43.
Notwithstanding CYS’s obvious concerns over Father’s con- duct and on well-being, February L.J.B.’s 10 and March 2006, Judge Williamson held a hearing concerning Father’s primary physical custody. The court reserved matter, ruling on the instead Mother and Father referring “for the court-appointed psychologist purpose enabling psychologist] to submit to the Court his observations and [the with to the thoughts regard psychological background of these (Mar. 802-02, parents.” v. No. C.L.F. Order Court 2006) P.J.). (Williamson, completion While of the evaluations and re- psychological custody were in late March sumption hearing pending, *8 2006, abruptly Mother off with Father dropped L.J.B. and fathers, Stepmother, dropped her other children off with their and moved to Tennessee. In the subsequent termination Mother that she felt she had no proceedings, explained choice but to her leave the give up custody protect battle and area to examinations. from continued pelvic L.J.B. She elaborated her, Father had continued to threaten her view CYS had failed to take action Father or to against protect L.J.B., she Judge against and believed Williamson to be biased Thus, Mother, L.J.B., her. in an effort to according protect Father, of her to and moved physical custody
she surrendered relocation, Judge to Tennessee. Williamson Upon viewed the over and evidently litigation primary physical legal moot, and entered an order Father sole custody granting as order, In the court’s it physical legal custody L.J.B. “abruptly its view Mother had and without explained anyone, notice to her children off with their prior dropped fathers, Id., various and moved to Tennessee.” Order of 2006) P.J.). (Williamson, (Apr. year, Over the course of the next Mother attempted maintain contact with L.J.B. from Tennessee ar- through conversations. ranged weekly telephone She also accepted (brokered visitation proposed arrangement by court-ap- of one weekend a pointed psychologist) month with the child. Mother, however, According to Father Stepmother re- conversations, cut short the peatedly telephone and circum- Indeed, vented Mother’s to visit. attempts was not until December of after the and the court inter- psychologist vened, finally that Mother visited with L.J.B. This visit consisted of a two-hour meeting a McDonald’s in Clinton County, where Father Stepmother remained present throughout the reunion of Mother and L.J.B.
Throughout Mother continued attempts to remain in contact with L.J.B. Her efforts included the making calls, the telephone sending presents, and the arranging for Mother, calls” “proxy half-siblings. L.J.B.’s According however, these efforts were thwarted by Father and Step- mother. This led maternal L.J.B.’s Grandmother to petition for visitation in the summer of 2007. on During hearing petition, Judge continuously Williamson berated Grand- mother for both her and Mother’s actions over the course of III, infra, L.J.B.’s life. As detailed Part Judge Williamson voiced his over what he disgust viewed as Mother’s abandon- L.J.B., ment of and went so far as to suggest that Father seek N.T., to terminate Mother’s parental rights. See Docket No. 818-07, 9,11. Jul. 2007 at Despite expressed his viewpoint and, derivation, regarding apparently Mother Grandmoth- er, Judge granted Williamson Grandmother one supervised *9 S.M.B., 818-07, with No. visit L.J.B. See B.J.B. v. Order (Jul. 11, 2007) P.J.) (Williamson, Court to (directing CYS “arrange supervised visit between Grandmother and the child; which, following entry we will consider the of a further Order.”). fact, did,
A between meeting Grandmother and L.J.B. and, afterwards, occur Judge CYS memorialized to Williamson that Father going was not to allow further meetings. See (Jul. 2007) Memorandum Judge from CYS to Williamson (“[CYS attempted to schedule additional visits but caseworker] refused. He said that he is unable to do [Father] so due to his work schedule. out that pointed [Stepmother] [Caseworker] office, can bring [L.J.B.] into but said that he [Father] would speak lawyer. angry. to his He left the visit It is clear some, that if not all of reluctance to visit [L.J.B.’s] [with attitude.”). Judge Grandmother] because Wil- [Father’s] record, liamson then placed another order on the directing that Father to permit was Grandmother visitation once a month. thereafter,
Immediately Father’s counsel submitted a letter Williamson, Judge to noting Judge Williamson’s initial order pertaining to Grandmother’s visitation only directed Father to take to meet with L.J.B. Grandmother once. See Drier, (Jul. 26, Letter from Marc S. Williamson Esq., Judge 2007). Counsel contended that Grandmother “disturbed” the child that Mother stating half-siblings and her missed her. Id. Without a hearing, Judge Williamson terminated Grand- S.M.B., 818-07, mother’s visits. See B.J.B. v. No. Order of 2007) P.J.). (Williamson, (Sep. order, Following this Mother continued to to contact attempt by telephone L.J.B. and the sending gifts; but Father and Stepmother refused or cut short the calls and did not apparently give L.J.B. the gifts.
B. Termination Trial 18, 2008, December Father Stepmother petitioned On terminate Mother’s to make parental rights involuntarily, way L.J.B., Stepmother’s adoption pursuant 23 Pa.C.S. alleged Father Stepmother
§§ 2511 and 2512.6 *10 at least period L.J.B. for a of six Mother had abandoned 2511(a), months, contacting not or provided as Section filing petition from mid-2007 to the date of the visiting L.J.B. considerations,” termination, the “other as set for 2511(b) (i.e., L.J.B.), the interests of also forth at Section best favored termination. ad litem a
Following appointment guardian the L.J.B., trial commenced before the Honorable a termination P. Miller Mother Craig April on 2009.7 testified Pennsylvania Adoption provide, the Sections 2511 and 2512 of Code part: in relevant involuntary Section 2511. Grounds for termination (a) rights parent regard may a General rule.—The to child petition any following grounds: be terminated after a filed on of the (1) parent by continuing period The conduct for a of at least six immediately preceding filing petition months the of the either has purpose relinquishing parental evidenced a settled claim to a parental perform child or has refused or failed to duties. (b) terminating rights Other considerations. —The court in the of a parent give primary developmental, phys- shall consideration to the rights ical and emotional needs and welfare of the child. The of a parent solely shall not be terminated on the basis of environmental income, inadequate housing, furnishings, clothing factors such as beyond parent. and medical if care found to be control of the (a)(1), (6) respect any petition pursuant With filed to subsection (8), any parent or court shall not consider efforts remedy the conditions described therein which are first initiated subsequent giving filing petition. to the of notice of the involuntary Section 2512. Petition for termination (a) may petition parental rights Who file.—A to terminate with respect age years may by any to a child under the of 18 be filed following: (1) parent sought respect Either when termination is with to the parent. other (2) agency. An (b) petition specifically Contents.—The shall set forth those grounds alleged terminating facts as the basis for rights. The filed under this section shall also contain an petitioner custody averment that the will assume of the child until adopted. petitioner agency such time as child is If the is an required adoption presently shall not be to aver that an contem-
plated person present adopt nor that a with a intention to exists. County only jurists, Judges 7. Clinton two has Williamson and Miller. case, Judge custody proceedings Williamson heard all the in Father continuously subjected to pelvic L.J.B. examinations and cleanings, and that Judge Williamson refused to put stop procedures. these Mother explained gave that she up custody fight and moved to Tennessee because she be- lieved that this was the only way to save from the L.J.B. continuing medical examinations. Mother stated that she intended to commence new custody proceedings in Clinton once County Judge Williamson retired because she believed that he contentions, was biased her. In against support of her Mother placed portions into evidence of the record of the custody proceedings.
During their testimony, Father and Stepmother repeatedly obstruction, denied wrongdoing or and adamantly averred that Mother had abandoned L.J.B. without any justification *11 whatsoever. Father further reiterated his belief that Mother may have abused L.J.B. After the close of the testimony, Miller Judge conducted an in L.J.B., chambers interview with in presence counsel, of in an attempt to determine what bond, if any, existed between L.J.B. and Mother. trial,
At the conclusion of the Judge Miller opinion issued an order, and accompanying in which he found that Mother had (as abandoned L.J.B. for at least six months provided by 2511(a)) Section when Mother relocated to Tennessee and failed to keep contact with L.J.B. Much of his reasoning concerned what Judge Miller termed as Mother’s mistaken belief that Judge Williamson was against biased her. Judge Miller thus decreed that Mother’s parental rights to be L.J.B. terminated, permanently and that Father remain in phys- sole ical and legal custody of L.J.B.
C. Appeal Mother’s the Termination of Her Parental Rights
of Mother appealed Court, to the Superior contending that Judge Miller in finding erred that Father proved, by clear and evidence, convincing that the totality of the circumstances supported B., termination of parental rights. In See re Judge presided Miller involuntary over all of the proceed- termination ings.
226 that the N.M., 847, (providing (Pa.Super.2004) 856 A.2d considering be examined when of a case must history entire be may only granted which rights, of parental the termination circumstances, evidence, of the totality light “if the termination.”). ar- Mother involuntary clearly warrants her actively obstructed Stepmother Father and that gued with relationship efforts to maintain the reasonable case, termination L.J.B., the facts of this and that under M.A.K., In re improper. was See parental rights Mother’s (where (1980) 597, exercises parent A.2d 1052 Pa. obstacles, which to refusing yield firmness” “reasonable termination relationship, the parental maintenance of prevent 2511(a) proper). is not under Section the Superior was before appeal pending While Mother’s Court, way the record Miller twice Judge supplemented 2010. The January 2009 and orders of November pieces reflected two to the certified record supplementations the final he received after he entered correspondence litem, from ad guardian termination decree: one L.J.B.’s Stepmother. I. the other from Lindsay, David Attorney in the way background, appendix as reflected By Court, Attorney brief to Mother informed Lind- Father were Stepmother say on November longer adopt no wished divorcing, Stepmother to Mother Attorney Lindsay initially responded While L.J.B. basis, legal without factual or he that he found claims *12 16, 2009, to Miller on November subsequently Judge wrote that, after with Father and he relating speaking Stepmother, (1) and separated and Father had indeed Stepmother learned (2) divorce; Stepmother to contact between intended (3) decreased; and had significantly Stepmother L.J.B. had Letter concerning reservations her of L.J.B. See adoption (Nov. 16, P. Miller Lindsay, Judge Craig from David I. to Esq. E). 2009) (found Brief, Appendix at Mother’s 22, 2010, letter lengthy wrote January Stepmother On Williamson, Stepmother’s Miller Father and Judge (Judge Lindsay all received jointly attorney, Attorney retained that had between detailing animosity developed copies) Father since their separation, notably including aver- Moreover, ments that Father was “aggressive” toward her. Stepmother noted that Father was no longer permitting her to visit with L.J.B. while Accordingly, Stepmother reiterated her desire to be a part L.J.B.’s life and how she regarded L.J.B. as her own daughter, given the between developments Father, her and and further constraints, because of financial averred, Stepmother “at this time I feel it would be best to drop the Letter adoption.” Miller, from Stepmother Judge (Jan. 2010) (found F.). et al. Brief, at Mother’s Appendix above, As noted Judge Miller ordered that the November 16 letter Attorney from Lindsay, and the 22 letter January from Stepmother, be forwarded to the Superior Court supple- as ments to the certified record. L.J.B., See In re Adoption of 21-2008, (Nov. No. Order Supplementing Certified Record 2009) (Miller, Id., J.); Order Supplementing Certified Record (filed 22, 2010) J.). (Miller, However, Jan. neither the certi- us, fied record currently before nor the appendices to any of briefs, the parties’ reflect Stepmother has formally filed any petition, application, or praecipe to withdraw her petition adopt L.J.B. Court,
The Superior an unpublished opinion, unanimously affirmed the termination of Mother’s parental rights, holding that the obstacles placed Father, Mother’s path by Judge Williamson, and CYS were not sufficient to overcome the presented evidence by Father that she abandoned L.J.B. for statutory period of six months. It does not appear that the Superior Court the supplements considered to the certified record, and what they effect might have on the ultimate outcome of the appeal. Mother petitioned this court for allowance of appeal, which we granted to examine propri- ety the termination order.
II. Termination of Rights Mother’s Parental
In cases concerning involuntary termination of our rights, review is limited to a determination whether the decree of the termination court is supported by competent B.D.S., evidence. Adoption 494 Pa.
228 (1981). for termination 203, party petitioning The
A.2d 207 at by that termination criteria for statutory the prove “must T.R., 165, 502 Pa. In re evidence.” convincing least clear and (1983). evidence is convincing and 642, Clear 465 A.2d 644 clear, direct, weighty, is so “testimony that defined as to a clear trier of fact to come to enable the convincing as facts precise the truth of the conviction, hesitancy, of without A.2d 521 Pa. Sylvester, Matter in issue.” (1989). parental rights termination of Concerning the 1203-04 2511(a), to pursuant abandonment Section due to the has parent establishes that clearly the evidence Where a settled duties or has evidenced parental to perform failed for a claim to the child relinquishing purpose months, individual circumstances of six the excess period exam- parent the must be by offered any explanations evidence, totality if light determine ined to termi- circumstances, involuntary warrants the clearly rights. of parental nation (1994). Atencio, 539 Pa. 650 A.2d
Adoption of support evidence not exist to Finally, should sufficient decree, court will be deemed to have termination the trial discretion, reversal of mandating an thus committed abuse See id. decree. parent’s a to terminate a Pennsylvania, petition In natural one the other involuntarily by parent against when filed rights prospective it is a only cognizable accompanied is when the child. 23 Pa.C.S. adopt intention to See stepparent’s 2512(b) that, youth agency if a children and only § (providing with- such termination may proceed is for termination moving adopt prospective intent to the child out a concomitant 2512, 1 to Section P.S. predecessor Under stepparent).8 only petitions for involun- Adoption Act deals with 8. This section of the text, and, termination, provides only tary in the as detailed agency required termination petitioning not be in the shall intending contemplated person adoption presently or that a aver that agency begs question must adopt This of whether exists. parent. That subsequent adoptive termination to seek out an intend us, day. specifically we leave it for another is not before issue *14 312, 2512, § repealed, replaced by § 23 Pa.C.S. effective 1, 1981,9 this Pennsylvania Jan. Court held that law adoption “indicates that a parent may bring petition a for termination of the parental rights of the other parent only adoption when B.E., 139, 153, is In re contemplated.” 474 Pa. 377 A.2d 155 (1977); Burns, 535, see also In re 474 Pa. 379 A.2d 541 (1977) (when initiated a natural parent, termination of the parent’s other rights may only occur with a contem present plation of as the adoption, purpose sole of termination is to child). remove hindrance to the potential of a adoption B.E., In a child’s natural mother had sole of her custody birth, child since and had not remarried since her divorce from the child’s natural father. Id. at 154. In petition to terminate parental rights, father’s she conceded that she had no to plans remarry or have the child adopted by stepfather. a Id. This Court held that termination of the rights father’s occur, could not as Section of the Adoption Act 312/2512 “provides for termination parental rights only connection Indeed, with a for plan adoption.” Id.10 the Court noted that legislative the purpose behind permitting involuntary termi- nation of parental rights:
is not an punish ineffective or negligent parent, or provide a means for the changing surname of the child. Rather, the purpose of termination of involuntary parental rights is to -with the dispense need for consent purposes Act, appeal, 9. For Adoption this the re-codification of the 1 Code, § seq., P.S. et into the Domestic Relations Title 23 of the Statutes, moment, seq., § Consolidated 23 Pa.C.S. et is of no as no substantive provisions amendments were made to the relevant to this case. below, throughout opinions 10. As noted the of the courts termination of parental rights pursuant Mother's occurred to Section 2511. While grounds involuntary Section 2511 delineates the for termination of parental rights, governs requisites Section 2512 a valid for termination, accordingly equally for controlling is relevant and regarding appeal. telling involuntary Also is that termination falls chapter under a Adoption “Proceedings in the re-codified Act entitled Adopt.” Prior to Petition to when, failed neglect, parent an choice or has adoption continuing to meet the needs child.
Id. at 156. terminated, are parent’s rights
Once a natural concomitant fosters a “new relation adoption parent-child a rule is sound ship.” Id. Such because “[t]ermination parent’s rights prior natural and allowance of adoption stepparent adoption purposes protecting integrity J.D.S., stability family of the new unit.” Adoption of Indeed, A.2d (Pa.Super.2000). prospective where due to stepparent, separation pending or divorce with unit, other natural will no parent, longer complete family *15 the termination of a natural parent’s rights due to abandon Thus, ment must be vacated. Id. at 872. where “no new is parent-child relationship contemplated,” “involuntary termination of ... ... parent rights permitted is not under B.E., 156; T.R., Act.” 377 A.2d at see Adoption also 465 A.2d at 644 n. 10 that (determining courts common pleas consider, face, “should and not merely accept on its [the potential stepparent’s and his or her spouse’s] Declaration of Intent to that Adopt, they genuinely so the issue of whether seek termination as an solely adoption thereby aid to establish a new parent-child relationship, the concern singular Act, determined.”).11 of the Adoption may properly be above, As noted supplements to the certified record Judge Miller reflect an intention by Stepmother to no longer L.J.B., seek and that adoption Stepmother and Father seem to be irreconcilably separated. neither the While docket nor the certified record reflects a praecipe formal or on petition Stepmother’s behalf withdrawing petition for adoption, factual circumstances of this case reflect certainly the drastic extent, change circumstances. To that Attorney Lindsay explained his November 2009 letter to Judge Miller that Stepmother “appears to have some concerns” in regard to the adoption, and the bond between Stepmother and L.J.B. “appears, regrettably, to lessen in both frequency and dura- public policy simple: Pennsylvania 11. The behind this is will not orphans. countenance state-created
231 growing tion as time due to the and passes,” separation Father Letter from animosity Stepmother. between and (Nov. 16, I. P. Miller Lindsay, Esq. Judge Craig David 2009) (found E). Brief, at Mother’s has Appendix Stepmother related similar proclamations:
This is the most difficult decision I have ever had to make However, very it is hard for me. at this time finalizing I feel it be I tell drop adoption. would best to did [her attorney, Attorney Lindsay, and October Father] However, letters, I am all court receiving still documents. (Jan. 2010) Miller,
Letter Stepmother Judge from et al. (found F.). Brief, Appendix Stepmother further detailed in the letter the alleged aggressive behavior Father toward her in the months after their Id. separation.
Notwithstanding the absence of a formal
or discon-
praecipe
tinuance,
the facts as exhibited in the letters of November
22, 2010,
2009 and
reflect
January
Stepmother
no longer
L.J.B.,
wishes to adopt
and that the
unit” of
“family
Stepmoth-
er and Father
to be
appears
permanently fractured. Under
general Pennsylvania
Section
as refer-
jurisprudence
above,
enced
rights
termination of Mother’s
moot, as it cannot
potentially
be effected without Stepmother’s
2512; B.E.,
adoption
§
attendant
of L.J.B.
See
Pa.C.S.
*16
155-56; T.R.,
10; J.D.S.,
at
A.2d
This Court should not decide moot cases. Pap’s See Erie, (2002) 375, 591, A.M. v. City 571 Pa. 812 A.2d 599 of (“This Court will not generally questions.”); decide moot see Cain, (1991) (“The also In re 527 Pa. 590 A.2d cases presenting mootness involve who problems litigants had to sue at the of the clearly standing litigation. outset The problems arise from events after the lawsuit occurring has under in the in gotten way-changes facts or the law-which the in allegedly deprive litigant necessary of the stake the outcome. The mootness doctrine that an actual case requires review, or must be extant at all controversy stages not filed.”) at the In re merely complaint (quoting the time (1978)). Gross, a 476 Pa. 382 A.2d Without fact, however, the final entry findings formal docket or by be regarding decision mootness cannot made Court Nevertheless, as the in this upon jurisprudence this record. clear, the not be for this prudent area of law is would a the with the appeal, to render decision on merits Mother’s remaining of mootness this case. outstanding question dissent, Melvin for In Madame Justice One faults us order- the of common rather than ing pleas, remand to court terminating the of the decree examining “propriety the parental rights, only which is matter before us.” Dissent- (Orie 258-59,18 Melvin, J., ing A.3d at 1125 Op. dissenting). where, view, Respectfully, we note instances our multiple the Dissent’s the mark. observations miss
First,
Dissent,
contrary
suggestion
to the
the
us,
squarely
issue of mootness is
before
is a
distinct
of Mother’s
to the termination
portion
challenge
decree.
suggestion
Mother raised a
of mootness at her first possible
in her
brief to the
opportunity:
reply
Superior Court after
Miller
the
Judge
supplemented
explicitly
record. Mother also
raises the potential mootness of the termination proceedings
before this
Brief
Court. See Mother’s
at 65-67.
In support
moot,
of her contention that
this case should be deemed
quotes
Mother
as
underlying policy,
elucidated
J.D.S.,
Superior Court
12. The Dissent also takes this to task letters However, Attorney Lindsay Stepmother. they part from record, are of this them, duty and we are thus bound to examine and to comment upon they germane properly them to the extent are to a framed issue.
233 Moreover, a objects the Dissent to determination of whether this case is when its be moot merits can decided adverse termination, party seeking litigation which would conclude this on its is admittedly something merits. There about satisfying “just However, it.” courts have deciding long restrained cases, those, themselves deciding from moot as including 259-61,18 Dissent, recognized on A.3d at 1126-27 of the pages Gross, which become moot during pendency. their See 382 (Pa.1978), 259-61, A.2d at 119 quoted in at Dissenting Op. (Orie Melvin, J., A.3d at 1126-27 dissenting); Pap’s see also M.,A. more A.2d We do no here than follow this long enshrined and wise rule. prudential
The opines Dissent also that even if is this case moot because of the lack of a to take stepparent parent’s the natural place, it can should be decided. we believe Respectfully, the Dissent has conflated the statutory provision involving agency 2512(b), see 23 adoptions, § Pa.C.S. with private step parent The adoptions. applicable statutory language provides petitioning a agency shall not be aver required to adoption presently is nor that contemplated person with Burns, present to adopt intention exists. See A.2d at 541 that, “a (holding when child is in the custody approved of an adoption no agency,” need exists for either the child be imminently or for the adopted agency put plan an adoption motion, into “one of the as Act purposes Adoption 1970 was to an permit agency parental to seek termination of rights independently of adoption.”).
Not only is this specifically inapplicable to a private adop- tion, corollary but suggests that when a or mother father seeks to terminate the other parent’s rights, the averment that adoption presently is and that a contemplated person has a present intention to adopt Indeed, is specifically required. E., B. 377 A.2d at is strong unaltered precedent support interpretation. above, of this As said idea that the state should create orphans family- inimical to our Moreover, centered society. the creation of termi- nation absent stepparent adoption provide would with parents new, and in our view tactic in dangerous, custody heated *18 for cross-petitions indeed, can routine imagine one
disputes; the Dissent’s battles under custody part as termination ready step- may occur without that termination suggestion parent.13 reasons, the decree we vacate these
For all of and re rights, terminating Miller Judge the intention hearing regarding evidentiary for an mand If, suggests, inference every as adopt L.J.B. Stepmother L.J.B., with in accord adopting no intention of has Stepmother herein, terminate forth the law set all of by the court of be dismissed should rights Mother’s parental pleas. common Miller Judges Williamson
III. Recusal the recu remand, order sponte we further sua Upon proceed further and Miller from Judges Williamson sal of particular parties of who the regardless involving L.J.B. ings uncles, Grandmother, Father, Mother, Stepmother, (e.g., are etc.). I, these infra, in Part aunts, As reflected half-siblings, extremely as an years ago several began legal proceedings In Williamson. Judge in front of custody battle contentious towards view, apparent antagonism Judge our Williamson’s Indeed, our exhaustive from the record. Mother is evident reveals, minimum, following at a proceedings review Williamson: Judge attributable to incidents (1) ex communications parte Permitted and entertained Mother; N.T., see L.J.B. and regarding
from Father S.M.B., (C.L.F. Petition v. Father’s No. 802-02 Docket 3; Nov. 2004 at Custody), Modification of disagreement clear mandate that indicating no with the law's 13. While ready the three Dis- may stepparents, not occur without terminations forward- senting disposing of this case on the bases Justices assert being light appeal fashioned as a proper of this ed herein is not Dissenting Opinions’ applaud We track” matter. "children’s fast expeditiously for the sake of this be concluded that this matter concern Nevertheless, Child, why on this remand agree. we see no reason meaningful delay. At the grounds will cause a jurisprudentially sound hearing, and is our opinion, we called for an immediate outset of this remand, that, will notwithstanding this matter be expectation shortly. very concluded (2) Ignored repeated warnings from regarding CYS
falsity of Father and Stepmother’s allegations of sexual by Mother; abuse S.M.B., see generally C.L.F. v. Pro- of Nov. ceedings 2006; 2004 and February/March (3) provocation Without criticized Mother’s conduct over the
“past years,” ten when at that point L.J.B. was five only old; years N.T., (B.J.B. S.M.B., Docket No. 818-07 v. Petition for by Grandmother, B.J.B.), Visitation Jul. 9; 2007 at
(4) Stated that Mother Father; “dumped” L.J.B. on id.
10; while [running] off L.J.B.];” and abandoning id. at *19 ii;
(5) Stated that placed information on an advocacy website (and/or
by Grandmother) Mother was ... and “garbage if you continue to publish stuff, this kind of you’ll never 10-11; see this child again.”; id. at (6) Advised Father to jailed have Mother “the next time
you find her in Clinton County,” due to Mother’s alleged failure pay 8;14 to child support; id. at (7) Advocated to Father that he seek termination of Moth-
er’s parental 11;15 rights; id. at (8) Failed to enforce orders barring further pelvic examina
tions of against L.J.B. Father/Stepmother. N.T., e.g. see (In Docket No. L.J.B., 21-2008 re Adoption Termi Trial), 30, 143, 149. 16 nation Apr. 2009 at that, 14. It 11, shotild be noted several July months after the 2007 hearing, Father Judge acted on Williamson’s advice and had Mother overnight arrested and very incarcerated on the next occasion he County. observed her in Clinton While it appropriate subject is not an opinion, for this it is not at all clear from the record that the arrest was justified. by advice, appeal, As evinced this upon Father acted as well. point, 16. On this we plague must note that the certainly solely not on above, Judge Williamson's house. As revealed subjected Father L.J.B. eight pelvic to no less than eighth examinations before the child's birthday. Notwithstanding the lack of contrary, evidence to the continuously L.J.B., Father accused Mother of sexual abuse of and in a attempt contention, gather vain to support evidence in of this forced undergo L.J.B. to and endure the trauma of these examinations. This conduct, however, reprehensible partially is at Judge least derivative of judge to have a must seek party a
Generally, for recusal the case, bringing first by recused from to evaluate judge enabling thus jurist, before v. Whit See Commonwealth recusal firsthand. reasons for (2006). is, in part, “This more, 912 A.2d 590 Pa. her reasons to state his or judge requested allow the and, biased allegedly as the the motion denying or granting The final matter.” Id. record on the develop party, an by reviewed then be judge may determination an abuse of court, upon be reversed may only but appellate Nevertheless, constitutional explicit in our Id. discretion. Commonwealth, it is courts of the authority supervise order the removal sponte to sua power this Court’s not outside Superior that the (holding Id. at 832 from a case. jurist of a from a judge removal of a sponte the sua may not order and admin case; supervisory falls within the question “such a to this Court granted the courts” over all of powers istrative 10(c).). Constitution, V, Article Section Pennsylvania legal of a order resolution In that we will capacity, “appearance on the mere judge before a new dispute “there are factors or be shown where may which impropriety,” im- jurist’s reasonably question may circumstances that Times, 604 Pa. Joseph matter.” v. Scranton in the partiality curiam). (2009) In our opinion, (per 987 A.2d *20 reflect, best, “appearance an facts as related herein the Upon Mother.17 against Williamson by Judge impropriety,” banning the his own orders examina- refusal to enforce Williamson’s tions. vein, upon County lay fault Clinton we must further In this same record, with all CYS had constant contact reflected in the CYS. As involvement, the Despite this extensive parties in this case. involved necessary stop repeated and unneces- agency action to failed to take recently poignantly queried sary child. As pelvic examinations of this scholar, maltreat- the harm that results from by "which is worse: one parent harm that results from the a or the ment at the hands of Mundorff, agency?” Children as Chattel: Kurt maltreatment of state Welfare, 1 Cardozo Invoking Amendment to Child the Thirteenth Reform Pol'y 2003). (May & Ethics J. Pub.L. worst, outright by development bias suggest the of an At the facts however, We, deep respect for Judge against have Williamson Mother. jurists, specifically decline to reach Pennsylvania’s all of remand, this case is to continue either as a termination going or The custody proceeding. custody proceedings involving L.J.B. have been handled in the by Judge past, Williamson that, intervention from this and there is no indication absent Court, in Accordingly, his involvement would cease. our view, of this otherwise child respectful protection helpless by in the these adults caught precipitated many maelstrom of all to a requires reassignment proceedings involving L.J.B. other than judge Judge Williamson.
Normally, judge such of a appointment preside upon new judicial remand could fall to another within the same judge noted, However, Judge district. as Williamson and Judge Miller are the only judges two commissioned of Clinton Coun- Further, ty. the record and transcript custody pro- ceedings before were Judge Williamson admitted into evidence Miller, during who, the termination trial before Judge examining totality of circumstances of Mother’s “aban- donment,” did not apparently potential consider appear- ance of impropriety by Judge against Williamson Mother. Indeed, bias, without addressing allegations of Judge Miller faulted wanting Mother for to wait until Judge William- son’s retirement again availing before herself of the Pennsyl- L.J.B., vania court system. Adoption See In re 21- No. 27, 2009); Termination Tr. at 12 Slip Op (May see also Super. Ct. Mem. at 12. Op.
Given what has to be a relationship collaborative and consid- ering case, both of their involvements we believe and, justice, L.J.B., importantly, as the interests of who has lifetime, suffered enough for a would best be by served a fresh pair Thus, eyes perspective. and fresh we order that all additional proceedings18 involving parties these be entertained conclusion on this record. We also must note that we are well aware of deep, participants, including emotional strain caused to all the trial battle,
judge, custody a contentious which too often reaches level parties. judge of an all-out war between the When a trial finds himself case, becoming emotionally or herself involved or frustrated such a may practice step judicial well be the better aside favor of a new end, figure. In the that is all we order here. *21 Dissent, respect 18. With all due to the even if this Court were to decide decree, custody proceedings the merits of the termination to think that district, judicial as coordinat- by jurist a new from different by Pennsylvania ed the Administrative Office of Courts.19 Conclusion
IY. Court, In the order of the summary, Superior we vacate immediate for an and final determi- hearing remand this case L.J.B., and if regarding Stepmother’s adopt nation intention to the court of proceeding, it is determined that she will not be so pursuant common shall dismiss this matter as moot to 23 pleas Further, § that all further proceed- Pa.C.S. we direct L.J.B., before ings involving upon beyond, remand and be held jurist, County, appointed by a new not from Clinton as the Administrative re- Pennsylvania Pending Office Courts. the court of common ceipt by pleas upon decision remand, jurisdiction. this otherwise retains joins
Justice the Opinion Announcing McCAFFERY Judgment of the Court.
Justice files a in which concurring opinion SAYLOR Chief joins. Justice CASTILLE concurring
Justice files a and dissenting opinion. TODD decision, inevitably following develop would not our or that neither Judge Judge proceedings nor Miller Williamson would handle those forward, Moreover, moving deny reality situation. suggestion Judge Judge that either Williamson or Miller would volun- tarily proceedings recuse himself from further is also belied record. Saylor Concurring Opinion (joined by 19. Mr. Justice has filed Chief Castille), fully joins disposition which Justice of Parts II and III supporting a remand to determine the status of the case and for the proceedings jurist. on remand to occur before a new sentence, We note that in the final Concurrence’s reflects uncer- tainty regarding any County "actual bias” the Clinton bench towards Mother, acknowledges appearance custody judge's but issue that the complete comments created. We are in accord with that observation. Concurring Opinion, Like the we are uncertain that there was bias, pair eyes” actual and called for the "fresh because of the "ill- intemperate” informed and nature of the "extraneous remarks.” See J., Concurring (Saylor, Op. concurring). A.3d at 1114 *22 EAEJN files a dissenting opinion. Justice a opinion. Justice ORIE MELVIN files dissenting SAYLOR, Justice concurring.
I support the lead hearing Justices’ decision direct a determine the present adoption status of the petition. comfortable, however,
I am not with the opinion’s lead treatment, factual as it substantially intermixes Mother’s per- sonal perspective with the much more circumscribed factual findings orphans’ court. For example, certainly, from Mother’s vantage, pursued Father the repeated physical ex- aminations of L.J.B. as a tactic to gain in the leverage custody testified, however, litigation. Father and there is some corro- evidence, borative that the examinations on began account of a See, N.T., urinary 10, 2006, tract infection. e.g., Feb. at 21-22. N.T., 24, 2004, See generally Nov. at 7-9 (reflecting positive culture results and orphan’s court’s remark: “I’m satisfied yeast had a year [L.J.B.] infection back last in 2003 [a initially pick doctor] didn’t it The up.”). possibility arises-and there are no by determinations a fact-finder to discount it-that at least some of the leading fixation to the unfortunate course of events pertained to the dispute, between Mother and Fa- ther, as to whether there were ongoing medical concerns.1 Additionally, Father and Stepmother testified that were they told, L.J.B., that she suffered from discomfort and there had been some on touching Mother’s N.T. part. See Nov. 10-12; N.T., 10, 2006, at 24-25, 48; N.T., Feb. at Apr. 30, 2009, at 67. there Although is that there finding was no sexual misconduct on part, there is no finding that she did not examine her daughter light of expres- Father’s sion of continuing concerns over the possibility of an infection. Nor is there any determination that some of the controversy, least, (rea- at could not have been due to misunderstandings pattern 1. The record arguably disproportionate shows similar part following concern on Father’s an incident in which L.J.B. suffered N.T., 10, 2006, 28-30, 34-40, 56, 71-75; from head lice. See Feb. at N.T., 2, 2006, 19-21; N.T., 30, 2006, Apr. Mar. at 87-88. unreasonable) malice deeper depict- rather than the or sonable majority opinion. ed in the and, in rarely light of family pleasant,
The dissolution of a is limitations, law— very difficult for a court of inherent appreciation court—to attain a full appellate an especially view, In my particu- of resultant dynamics disputes. deeply to delve so controversy require lar does not addressed concretely into facts which have not been conclu- straightforward court to arrive at the rather orphans’ *23 likely that the matter is moot. sion that it thinking I have no with the would be Finally, quarrel controversy to have protracted at this in this stage beneficial eyes.” a pair L.J.B.’s circumstances evaluated “fresh Court, at Announcing Judgment the of the Opinion above, however, I my deeper the lines of see Along thoughts attrib- examples impropriety being context to some of the I it clear that some of custody judge. uted to the While find the remarks were ill-informed and judge’s extemporaneous bias, reflect actual albeit I intemperate, they I am not certain have acknowledge they do the issue created. appearance joins Concurring Opinion. Chief this Justice CASTILLE TODD, concurring dissenting. Justice the instant designated This Court has case as “fast-track” appeal, philosophy this Court’s that matters involv- reflecting ing expeditiously possible children should be resolved as as Here, without the delay. suggests undue record years, Mother has not seen L.J.B. almost five and remand further proceedings, proposed by Opinion as Announc- (“OAJC”), ing undoubtedly will Judgment even further the which has both prolong uncertainty plagued Mother and while I with the Accordingly, agree L.J.B. OAJC that, where there is evidence to that an action has suggest moot, preferred generally become is to resolve approach question by remand or otherwise before addressing merits, view, in the my inappropriate a remand is instant case. my
Based on exhaustive review of the record in the instant case, I join Eakin, the views of Melvin Justice Orie and Justice as set forth in their respective Dissenting Opinions, that there is substantial and sufficient evidence to support claim that her efforts to maintain contact with L.J.B. were Moreover, continually frustrated Father. I with agree Melvin Justice Orie that the Court erred in Superior failing to evidence, properly consider such focusing solely on Mother’s intervention, failure to seek court rather than totality circumstances, record, required. as Given this light of our self-imposed charge to resolve matters involving chil- dren I no expeditiously, delay see reason to further resolution of this matter by remanding to the trial court for determina- mootness, tion of and would simply reverse the order of the Superior Court. do, however,
I join that, in the OAJC’s determination based on the peculiar procedural matter, facts and history further with proceedings regard L.J.B. should be presided over aby jurist district, new from a judicial different as appointed by the Administrative Pennsylvania Office of Courts. *24 EAKIN,
Justice dissenting. dissent, I respectfully as remand for a determination of mootness appears to me to be a pointless gesture. We have we need everything very to answer the simple question pre- review, sented for our which the Opinion Announcing the (OAJC) of Judgment the Court implicitly recognizes by virtue of its very detailed opinion. place, With foundation we very easily succinctly and could decide the merits of this case.
I would hold the order terminating rights not supported by was competent evidence and should be reversed —the record and the OAJC’s analysis abbreviated true, compel this result. If that is accomplishes remand nothing. The would be returned the parties position to exact they were in before the trial ruling; court’s Mother’s right would be intact. for the the impetus
If the trial court finds court then the most that no rights longer place, terminate a result we rights, terminate Mother’s on remand is not can do if the trial court finds Conversely, can now. accomplish be returned to simply the case will play, termination is still us, by unenhanced before already rule on the issue us to nothing. accomplishes evidence. Remand additional the judicial resources and significant Remand consumes if we still decide the essentially asking should by time parties’ remand, as a judge a straightforward case. And this is not matter, the ordered to decide judicial from another district is inherent delays limitations and additional logistical with all the three-quarters way of the Having gone in such an order. merits, with a on the this case on the result deciding of a fear analysis, from the a retreat because apparent merits without harm than everyone good, of mootness does more can, should, the we an difference from result availing reach now. I
Accordingly, respectfully dissent. MELVIN, dissenting. Justice ORIE the by propri- This allowance was to address appeal granted the opinion Superior of the March and order of ety terminating decree May Court that affirmed (“Mother”) (“Child”). My parental rights of C.L.F. L.J.B. my review of the record conclusion that compels exhaustive the termination decree is not clear and convinc- supported effect evidence and must be reversed. The ing practical view, In my that reversal ends this case. consideration Announcing Judgment matters Opinion (“OAJC”), entry to the subsequent occurred unnecessary, order is and unwise. At this appealed improper, ultimately it is irrelevant whether in- juncture, Stepmother tends to because the termination decree cannot adopt L.J.B. disposition A remand adds to the nothing proper stand. *25 case, and the courts only parties serves to burden the and fails to address the unnecessary litigation, properly with issue before us. only
My exhaustive review of the record in compels this matter one conclusion: that the decree terminating Mother’s parental must be rights (“Father”), reversed. Mother and S.M.B. who married, never resided together the time of birth on Child’s 27, 2001. August They separated during the summer of 2002 old; when Child was eleven months Father then married W.B. (“Stepmother”) in November year. thereafter, of that Shortly Father a custody filed complaint, and the contentious litigation described ensued. From the date of separation through infra 13, 2006, March Child Mother; resided with primarily Fa- partial ther’s custody increased from evenings per two week and alternating weekends to a sixty-forty percent split favor of Mother. 18, 2008,
On December Father and Stepmother filed a petition Child, to adopt old, who was years then seven and sought involuntarily terminate Mother’s parental rights pursuant 2511(a)(1) (2). § 23 Pa.C.S. The orphans’ court held a hearing on the termination on April 2009, wherein Father and Stepmother testified in support of Mother, the petition, and B.B., Child’s four half-siblings, and (“Grandmother”) maternal grandmother testified in oppo- sition. The orphans’ court interviewed Child chambers in the presence counsel on May at which time Mother requested a formal bonding evaluation. Folio-wingargument, that request (“GAL”) was denied. Child’s guardian ad litem filed a report May on opining it was in Child’s best interest to terminate rights.
By 27, 2009, decree dated May the orphans’ court terminat- ed Mother’s parental rights pursuant to 23 Pa.C.S. 2511(a)(1) (b), § that, determining while Father obstruct- Child, ed Mother’s contact with Mother failed to take requisite affirmative steps overcome the obstacles placed by Father. The orphans’ court also ruled that no bond existed between Mother and Child. Accordingly, it concluded that termination of Mother’s parental rights adoption Child Step- mother would best serve Child’s needs and welfare. Mother appealed to the Superior Court.
244 the decision, affirmed Superior the memorandum
In a L.J.B., No. Adoption In re rights. of parental termination 562, memorandum 2009, unpublished MDA 996 A.2d 1097 2010). 10, peti- granted We filed March (Pa.Super., to the and, remand following appeal, for allowance of tion Mother was of whether court for an assessment orphans’ status, case was submitted the in-forma-pauperis entitled the briefs. to us on facts, following pertinent the
The record substantiates the relevant they only bear on I detail here because which Moth terminating of the order us: the propriety issue before custody the proceedings1 rights. Throughout er’s parental action, reported Father repeatedly the instant that preceded (“CYS”) that and Youth Services County Children to Clinton when neglected Beginning Child. sexually Mother abused old, that under requested Father Child years was two L.J.B. examinations, “at eight” occurred on least which go pelvic 2/30/09, 143; N.T., 2/10/06, 22. Mother N.T., at at occasions. orders seeking protective petitions contempt filed two examina unnecessary pelvic initiation of Father’s preventing N.T., 4/30/09, the first con During at 180. tions of L.J.B. Father, told Mother that custody the court tempt proceeding, life,” and it every right a has to ruin parent, [Child’s] “as not hold apparently the Id. The court did contempt. denied either. to the second contempt pursuant Father 20, Instead, 2003 order it issued a statement its October custody Father’s for modification of addressing cross-petition the to medical taking child parties’[2] practice that “the period at the end of each custodial practitioners [for testimony portions of orphans’ incorporated from 1. The court 24, 2004, 10, 2006, February March custody proceedings, on November N.T., 4/30/09, 2006, 11, 2007, 2, at July into the instant record. however, record, 137, complete custody was not admitted 224. The complete proceedings, and the record has not been the termination OAJC, only appeal. represented by I recite on As certified us presently before us.” OAJC at 1102 n. 2. "that which is in the record parties prohibition rather than appears the court directed the It individually the doctor in because Mother had taken Child to Father upon and insistence that Child had a albeit Father’s demand infection, pelvic examination at that time. yeast and Child underwent N.T., 4/30/09, at 144. 11/9/04, Order, stop.” must purpose pelvic examinations] order). 1-2 A Novem (referencing prior October custody 2004 memorandum to the court from CYS ber caseworker Dennis E. Wilson substantiated dearth sexually the child has been or suggest evidence “to emotionally vaginal “[c]ontinued abused” and advised are not necessity examinations of the child without medical Memorandum, 11/22/04, at 2. Mr. recommended.” CYS Wil memorandum into the January son also read CYS *27 record, in pertinent part: which stated agrees and Youth with the medi- County
Clinton Children in this case that the examinations and professionals cal cleanings vagina stop. Agency of the child’s need to The an abuse if open investigation Stepmother] [Father will unnecessarily continue to have the child examined or The also a Agency request temporary change cleaned. will during investigation. visitation course N.T., 2/10/06, at 43. Father testified that had Child been pediatricians, Henry under the care of two different Dr. N.T., 4/30/09, Dr. Thane Turner. at 56. Dr. Dietrich and custody stating, Henry Dietrich sent a letter to the court “Dr. Dietrich’s medical concurs with Dr. Thane Turner’s opinion from that need to opinion Stepmother] [Father 11/22/04 County Clinton Children and Youth with the stop. agrees medical in this case that the examinations of the professionals child’s need to Id. at 57. or more vagina stop.” profes- Six sionals over the and none investigated allegations years, Undeterred, of them found evidence of sexual abuse. two any days filing primary custody, after a Father and Stepmother again ignored once October 2003 order January Jersey Hospital took on 2006 to the Shore Child another emergency yet vaginal room where she underwent N.T., 2/10/06, examination, During at 24. that examination. or which likewise revealed no abnormalities indications abuse, were taken. photographs genitals sexual color of Child’s at 32. The court found as a fact that CYS custody Id. reports neglect all of Father’s of abuse or were determined clearly by The court was Father’s exasperated unfounded. behavior, as its comments: evidenced there making specific finding absolutely
I’m was heard nothing physical people or verbal observed or Jersey Hospital suggested at the Shore that would have there was reason the world that this child shouldn’t have been in bed in her own home and not at the Jersey with her Hospital legs spread apart taking picture Shore anymore. of her area. Now don’t on it Let’s vaginal go move onto something else.
N.T., 2/10/06, frustration, at 49. the court’s it failed Despite enforce its order and halt prior repeated Father’s detestable 5/27/09, See behavior. at 4. Orphans’ Opinion, subjected Mother testified when Father to yet Child vaginal another examination and of her photography genitals, 25, 2006, January custody on and the court failed to enforce its behavior, prior order such she felt proscribing compelled to Thus, in whatever manner protect Child she could. on March 13, 2006, Mother relocated to in an Tennessee3 effort to eliminate L.J.B.’s five-year-old exposure continued to Father’s sexual exploitation through repeated unnecessary exam- pelvic inations that lacked any medical foundation. Mother ex- *28 asked, that plained “[W]hy they L.J.B. did do that to me? me?”, Why my daddy did let them that to do to which Mother not responded, going happen “[I]t’s to no more. I’m not [sic] going N.T., 4/30/09, to let that to happen you any more.” at 167. Mother reasoned:
I waited for custody judge] [the to issue an stop- Order ping vaginal exams. He did not issue an Order.... Youth Children and had sent a memo and stated specifically that if they [L.J.B.], had more exams done to they that stop would visitation immediately. [Father’s] And did they not enforce their memo. custody not do judge] [The did anything to from stop having any [L.J.B.] more exams. previously 3. forty away Mother testified that she had moved minutes area, stop from the "and it didn't She maintained that [Father].” she probably "could have moved to Timbuktu.... It didn't matter where I primary custody, thought vaginal lived if he had I [the examinations] N.T., 4/30/09, stop.” would at 193. just I they pictures privates, And after had taken of her go could never allow that to on no more. [sic] N.T., 4/30/09, just at Mother that explained ripped 143. “[i]t heart. I that my Stepmoth- out couldn’t believe [Father would her that.... I’m her mom. I’m put through er] to her.... I once supposed protect thought [Father just had I had visitation Stepmother] primary custody and month, everything stop.” once would Id. at 148-49. Mother anything prevent stated she “would do to from [Child] those exams if it meant that I never see having again, could at again.” represented Id. 182. Mother further that as she had not examina- anticipated, undergo any Child did such relocation, following tions Mother’s a fact substantiated in the moved, record by Stepmother. Id. at 67. After Mother custody arrangement give partial was modified to Mother custody one per Apparently, weekend month. Father re- Mother, mained dissatisfied with this level of contact with he admitted that he wanted out of “[M]other life.” [Child’s] Id. at 21. relocation,
Upon
she also was entitled to telephone
Father,
contact with
every Thursday
p.m.
Child
at 8:00
however,
all
placed
telephone calls between Mother and Child
on
“to hear what
speakerphone
going
was
on.” Id. at
Child,
explained
Mother
although initially happy when
called,
Mother
talk
freely
“couldn’t
to me.” Id. at 149. Moth-
er testified that Father and
would
Stepmother
comment to
her;
Child while Mother
to converse with
Father
attempted
claimed that
talk
eventually stopped wanting
L.J.B.
to
Mother at all. Id. at
149. Father told Mother that Child
invariably
did not want to
to her and
on
speak
hung up
Mother.
Id. at 153. The orphans’ court found that when
Mother
on
attempted
telephone
Day by
Child Mother’s
call,
having her son
place
upon
glee
Child’s obvious
speaking
“mommy’s
Mother and revelation that
on the
*29
Mother,
Father
phone,”
hung up
telephone, telling
“Wrong
day,”
154;
because it was a
not a
Id. at
Sunday,
Thursday.
5/27/09,
Orphans’
Additionally,
at 6-7.
Opinion,
Step-
calling
mother threatened Mother with harassment for
Child
time
birthday,
every
on her
after
on Mother
she
hanging up
4/30/09,
N.T.,
call.
at 153-54.
acknowl-
Stepmother
tried to
that she
did
at one
Id.
edged
“possibly
point.”
[threaten her]
at 88. Mother admitted that after she was threatened with
for
to
after
telephoning,
try
again
harassment
she did not
call
infra,
of 2007. Id. at 160. As
Mother had
August
explained
reason to fear such threats
Father’s role in
upon
based
initiating
being jailed.
an incident that resulted Mother
See
J.G.J., Jr.,
(1987) (non-
Pa.Super.
In re
Mother last visited with Child in December of nearly a year after she moved from Pennsylvania, when she was forced to seek the custody court’s intervention because Father con- tinued to prohibit all contact with Mother. Despite Mother’s entitlement to unsupervised partial weekend custody, she was relegated to a two-hour visit at a McDonald’s Restaurant where remained, Father and Stepmother observing visit. Father admitted that the authorization for the two-hour visit “came from custody N.T., 4/30/09, [the judge].” at 215. In 2007, Mother delivered presents Easter to Child through son and delivered Christmas presents to Child through Grand- mother. In August Grandmother sent Child a birthday card signed by Mother that Father returned.
Mother testified that she provided no gifts to Child after 2007 because Father permit refused to Child to have them. The orphans’ court found as fact that Father and Stepmother “instructed the Child to call Stepmother ‘mother’ and Mother [by her first Orphans’ 5/27/09, name].” Court Opinion, at 7. Mother explained that she did not seek further court interven- tion because it became clear to her based upon the court’s refusal to enforce even her monthly weekend custody that such efforts on her part would be futile.
Mother also became intimidated the power of the custody court and the perceived relationship between the custody court and Father. In support, Mother noted that when she moved from the initial Tennessee, relocation address she apparently had been mailed notice of an order directing payment of a Meacham, fee to Robert $50.00 the court- custody 5. The hostility court’s toward Mother and Grandmother S.M.B., 818-07; apparent N.T., in the record. B.J.B. v. No. 7/11/07 ("Grandmother visitation”), at 9-11. notice, received she never While psychologist. appointed issued due had been that a warrant learned subsequently she therefore, pay her son to Mother, directed nonpayment. to its rescinded order was the court which following the bill drove N.T., 4/30/09, Mother at 151. When September aon road Father passed she August Pennsylvania thereafter, Haven Police a Lock house, and, shortly near his *31 he that himself testified her. Father following began Officer in her the call if I saw to by custody judge] [the “was told see also 218; N.T. so. Id. at Grandmother area,” and he did (“I you next time visitation, 7/11/07, the suggest at 8 would they’ll pick and call the Sheriff County you in find her Clinton the been and paid fact that the fee had up.”). Despite vehicle, rescinded, police stopped had been order her other car, her while handcuffed her from removed was forced to watched, jail, her to where she and took children N.T., 4/30/09, Mother concluded at 152. the night. spend its that, not enforce if the court would experience from yet freely and examinations of Child prohibiting pelvic order Pennsylvania in appeared it if Mother notify Father to advised hope she had no custody, taken into that she could be so relief. court-ordered getting ex to the parte letters that Father wrote explained
Mother though even no hearings in court court that resulted custody 4/30/09, N.T., at 168. been filed. or motion had petition formal custody court Indeed, by 2004 order a December (footnote Order, 12/1/04, omit- at 1 claim. substantiates this ted)(“On 9, 2004, unsigned a lengthy we received November about [L.J.B.]’s numerous concerns raising from Father letter ”). Moreover, a immediately hearing.... scheduled care. We visitation, seeking instituted in the Grandmother proceeding opined, the court custody judge, heard the same which was her mother see because [L.J.B.] won’t let [Mother] “[Father] protested abandoned her.” When Grandmother ran off and on, Child, “I’m judge went did not abandon that Mother have [Mother’s] a hasn’t filed surprised [Father] N.T., 4/30/09, 169; N.T. Grandmother terminated.” rights Grandmother, 7/11/07, told visitation, at 11. The court in in you’re your daughter’s the situation because “[Y]ou’re absolutely for the last reprehensible conduct has been ten time, even was five old at the years,” though only years Child parties only had been before the for the judge prior years. three Id. at 9. Mother from these com- concluded ments, doesn’t custody judge] “[The like me. was in [Father] exam, took Contempt vaginal of Court and for a [Child] I nothing bill, was done. But didn’t a pay psychologist[’]s $50 N.T., I 4/30/09, ended at 169. up jail.” Mother everything indicated she tried she could think of to her rights including enforce to see Child attempting through Grandmother, all to no avail. Id. at 187. sought
Mother revealed that she legal upon advice relocat- to Tennessee ing attempt partial enforce her custody there. was advised rights attorney She Tennessee while he temporary could assist her getting protective exams, order for Child from vaginal further matter ulti- mately again would be heard before the same trial judge Pennsylvania. Id. at 157. Based on her court experience, and in light Child, of Father’s obstruction of her relationship with *32 Mother concluded that Father wanted her simply “out of life Id. at completely.” 204. As supra, [Child’s] noted Father admitted as much. Id. at 21. alia, asserts,
Mother
inter
that the lower courts6 erred in
that
concluding
Father met his burden of
proving
Mother
of
evidenced settled
her
purpose
relinquishing
parental claim
to L.J.B. or
or failed to perform
parental duties,
refused
in
of
of
light
extensive evidence
record that Father obstructed
Mother’s efforts to maintain her place in
life. I agree.
Child’s
issue,
As I find merit in
it is unnecessary
to address
2511(a).
other
Mother’s
contentions regarding section
opinion
payment
support
6. Neither
mentions
below
Mother’s
of
for
Child, but
there was some discussion
at
about
it
termination
hearing.
voluntarily attempted
pay
Mother
she
stated that
Father
outright,
me,
accept
laughed
but
it.
”[h]e wouldn't
He
and he
Ultimately,
support
wouldn't
let me see her.”
Id. at 184.
child
for
wages.
payment
L.J.B. was deducted from Mother's
Id. at 183. While
alone,
support,
performing
of
one
is not sufficient
establish that
duties,
Burns,
parental
certainly
is a factor to consider. See In re
(1977).
Pa.
§ 2511. Grounds to a (a) regard parent of a rights rule —The General of the filed on petition after a terminated may child be grounds: following of at
(1)
continuing
period
conduct
The parent
filing
immediately preceding
months
least six
relin-
of
purpose
a settled
has evidenced
either
has refused or failed
to a child or
claim
quishing parental
duties.
parental
to perform
(b)
terminating
court
considerations. —The
Other
to the
consideration
primary
give
of a
shall
rights
parent
needs and welfare of
and emotional
developmental, physical
child____
L.M.,
conduct.
In re
the parent’s
the focus is on
Initially,
(Pa.Super.2007).
Section claim relinquishing parental purpose strate both a settled duties. perform and refusal or failure to a child Services, 512 Pa. A. v. Social Baby Boy Catholic (1986). may be 1244, 1246 parental rights Accordingly, A.2d 2511(a)(1) parent if the to Section pursuant terminated pa purpose relinquishing a settled either demonstrates duties. perform parental to a child or fails to rental claim E.D.M., 595, 708 550 Pa. Charles Adoption In the Matter of if the court Only in original). 92 (1998)(emphasis A.2d (a) conduct satisfies subsection that the parent’s determines part analysis pursuant in the second engage does it then 2511(b).7 L.M., Id.; supra. see also to section *33 and standard of scope detailed the relevant The OAJC has paren- terminating the decree affirming review. In conduct, determining in in that Mother’s the lower courts erred 7. Since 2511(a), circumstances, § totality satisfied 23 Pa.C.S. light of the E.D.M., (b). supra. necessary Charles to evaluate subsection it is not
253
“Mother’s
determined that
Superior
rights,
tal
her
protect
court intervention
order
failure to seek
fatal to
relocating to Tennessee is
custody rights after
partial
L.J.B., supra (unpublished
Adoption
her claim.” In re
12).
this critical error
memorandum at
I believe
of this case.
compels reversal
reasoning
Court’s
Superior
there was a
in excess of six
period
It is not
disputed
In
had no contact.
con-
months wherein Mother
Child
her
affirmatively
parental
that Mother failed to
exert
cluding
however,
Father,
by
the obstacles
rights
placed
to overcome
consideration to Mother’s
give
the courts below failed to
due
The
responsive
for her
actions.
explanations
situation and
shameful, system-
Father in this case were
placed by
obstacles
offensive,
sure,
ic,
to be
was his exposure
and sustained. Most
medical examinations.
vaginal
child to
young
repeated
finding that Mother did not
orphans’
explicit
The
court’s
erect-
multiple
to overcome the
obstacles
affirmatively attempt
ignores
not
in the record and
supported
ed
Father is
all of
Stepmother actively spurned
critical fact that Father and
life. Father
not
Mother’s efforts to remain
Child’s
should
See,
In re
e.g.,
Adoption
be rewarded for such conduct.
(1992)
C.M.W.,
360,
(parent’s
412
makes reasonable to overcome obstacles created by to terminate ‘a mere party seeking parental right, showing that the could have action parent conceivably pursued legal ” more cannot promptly justify parental termination of rights’ C.M.W., (emphasis original)(quoting Adoption 603 A.2d of 625)). Moreover, at the few cases from this Court address the of propriety involuntarily orders terminating pa- rights, myriad rental and the of Superior cases from the so, that do all reinforce that: is well established that a court must
[i]t
examine the
individual circumstances of each and every case and consid-
er all explanations offered
parent to determine if the
light
totality
evidence in
of
clearly
circumstances
Bowman,
268,
warrants termination.
In re
542 Pa.
666
J.,
274
Reversal);
A.2d
(1995)(Zappala, Opinion
support of
K.C.W.,
1,
In re
456 Pa.Super.
(1997);
We
have held in situations such as
where
the custodial parent
prevented
has
the parent whose rights
subject
are
to termination from
duties,
performing parental
parental performance is to be
in light
measured
of what
would
reasonably
be
of an
expected
individual in similar
circumstances, giving due consideration to obstacles encoun-
J.S.M., Jr.,
tered. See In re Adoption
492 Pa.
D.J.Y.,
(1981);
A.2d 878
supra; and In the Matter
C.,
Adoption
(1978).
David
479 Pa.
Based
court
upon
testimony,
orphans’
concluded
that the mother’s actions
the father from maintain-
prevented
B.D.S.,
a
with
to
ing
parental relationship
refused
court,
terminate his
In
parental rights.
affirming
orphans’
S.H.,
pattern
we examined a similar
of barriers in Adoption 608,
(1978),
476 Pa.
529
383 A.2d
and reaffirmed our admoni-
tion in S.H. that a
will not
parent
be found
have refused
parental duties or
a
perform
purpose
evidenced
settled
relinquishing parental claim to a child as
as he uses all
long
available resources to preserve
parental
relationship
yield
exercises reasonable firmness in
to obsta-
declining
B.D.S.,
530).
S.H.,
cles.
Adoption
analysis
511 Pa.
deliberate actions
to thwart her
to contact
designed
attempts
B.D.S.,
The cornerstone of
I underscore
is that while a
B.D.S.
concerted,
parent must make a
deliberate effort to maintain
child,
contact with her
“all circumstances must be considered
analyzing parent’s performance
when
or
non-performance
R.W.B.,
168,
In re
parental obligations.”
(citing
Id.
485 Pa.
(1979)). Further,
257
T.R.,
evidence of the statutory criteria. Santosky; In re
(983).
Pa.
If
in
anything
this record can be characterized as supported
evidence,
by clear and convincing
Father,
it is that
who bore
the burden of proof, engaged in a persistent pattern of con
designed
duct
to erase Mother from Child’s life and substitute
Stepmother
eyes.
Mother
Child’s
The sole basis high
lighted by the
Superior Court
refusing
give
credence to
all of Mother’s continued efforts to perform parental duties
rested upon Mother’s failure to pursue court intervention after
Indeed,
Mother acknowledged that she did not continue
legal intervention after
custody
court failed to enforce its
orders prohibiting Child’s repeated pelvic examinations and
permitting Mother’s
partial
weekend
custody following her
relocation from Pennsylvania.
Father,
No
GAL,
one—not
court,
the orphans’
or the Superior Court—has explained how
Mother was to
Child,
maintain contact with
let alone assert
life,
prominence in her
in the face of Father’s unfounded
allegations
abuse,
of sexual
heinous
exposure
this young
child to multiple vaginal examinations, and abhorrent interfer
ence in the mother-child
A
relationship.
parent
is not re
quired
perform
G.P.-R.,
the impossible. In re
tolerated, provide will not certainly B.D.S., 431 A.2d rights.” of parental termination involuntary at 208. The matter. ends this decree unsupported of this
Reversal two upon based and is supererogatory remand is OAJC’s to the written that were mere possibilities espousing letters November final decree.9 On of the entry court after orphans’ court terminated the 2009, orphans’ after 25, six months that it observed the court orphans’ parental rights, Mother’s indicating that ad litem the guardian a letter from received on currently intend “split up Stepmother Father and the Court. Superior that letter to and it forwarded divorcing,” [Stepmother] “would like that Father The letter indicated to have Stepmother “appears adoption[,]” the but with proceed Lindsay, David I. Letter from regard.” in this some concerns Miller, two Similarly, P. Craig to Hon. Esquire, 11/16/09. forward- 2010, the court January orphans’ months later on January dated Stepmother it received from ed a letter concern- uncertainty communicated Stepmother in which her of Child. adoption with ability proceed her ing post-decree Stepmother’s the relying upon In GAL’s that “the court, suggests OAJC orphans’ letters to the drastic certainly case reflect circumstances of this factual I observe there 1108. in circumstances.” OAJC change that change[s] circumstance” any are not “drastic truly terminating review of the the decree propriety our prevent before us. only matter rights, which is “neither the docket nor Indeed, that acknowledges the OAJC or on praecipe petition reflects a formal the certified record adoption[,]” withdrawing petition behalf Stepmother’s or praecipe of a formal an “absence displays and the record suggestion The Id at 1109. OAJC’s discontinuance.” poten- rights of Mother’s “the for termination presently is not tially acknowledgment moot” is a tacit suggestion, I consideration of Contrary do not assail OAJC’s reliance the OAJC's post-decree OAJC at 1110 n. 12. It is letters. See document, remand, formally-filed upon in the absence of them to issue, light completeness of the instant take with which I before us. record to decide issue
259
added).
(emphasis
moot. OAJC at 1109
it is true
While
that
question
can
moot as a
of
legal
changes
become
result
the
law,
of the
facts
case or in the
“such
must
changes
finally and
the
conclusively dispose
controversy,
they
and where
do
not,
Kane, Rachel,
the case is not moot.”
2 Standard Penn
(2011);
§
Practice 2d
6:49
sylvania
Development
National
v. Planning
Corp.
Twp.,
Commission
Harrison
64 Pa.
(1982)
246,
1308,
Gross,
439
1310
(citing
Cmwlth.
A.2d
In re
(1978)).
Pa.
382
A.2d 116
B.E.,
The OAJC cites In re
474 Pa.
377 A.2d
(1977),
T.R.,
(1983),
In re
502 Pa.
In when Father and Stepmother filed the instant termination petition, adoption Stepmother was contemplat- (under ed. case decided When was trial court standard) Court, to the proper appealed Superior adoption by record establishes that Stepmother was contem- plated. granted When this for allow- adoption by substantiates that the record appeal,
anee of the record con- Currently, was contemplated. Stepmother contemplated, was as adoption by Stepmother firms has formal docu- nor Father filed Stepmother neither Indeed, averring acknowledges otherwise. the OAJC ments *39 be made by “final mootness cannot regarding that a decision Hence, 1109. I record.” OAJC at upon this Court this is circumstances an changed that the mere assertion submit rule, requires which prudential basis invoke this insufficient to of the contro- conclusively dispose to and changes “finally the A.2d at 1310. Development Corp., National versy.” or of a dis- praecipe the absence formal “Notwithstanding continuance,” 1109, the it suggests at OAJC is OAJC merits, the despite implying to decision on imprudent render a Instead, the “vacate[s] the of such a result. it order propriety ... to the court the Superior remand[s] Court to evidentiary hearing immediate deter- pleas common an moot,” if now mere upon mine the instant action is based made letters were parte subsequently assertions in ex record, and directs to dismiss this part made the court Stepmother changed matter if it determines that has mind If not based adopting about OAJC on L.J.B. assertions, merits of mere on what basis does the the these vacate Court order? The OAJC has Superior OAJC herein, it only envisioned one resolution unnecessarily leaves Mother in a state of flux if Father’s and and Child have not The OAJC Stepmother’s changed. intentions is if deafeningly concerning silent where this case stands Father which, I Stepmother proceed adoption, intend to with as established, in accord with the formal record have is as her direct today. proceeded through ap- exists Mother has wisely and this has chosen to peal, grant discretionary filed, considered, The and the review. briefs have been mat- If, ter is Father does ripe. contemplates, as OAJC not intend to seek court adoption by Stepmother, orphans’ to Hypothetically, directed dismiss the case. Father could else, now be divorced from remarried to someone Stepmother, seek to that his rights and still terminate so subse- can There would no quent spouse adopt disposition L.J.B. be us detailing on merits of the decree before Father’s eliminate Mother solely shameful treatment of his child life, record, the fact that the despite from L.J.B.’s instant view, Due my compels such result. OAJC’s refusal instead, remand, address the issue before us and at least five will have since Mother’s last contact with years passed L.J.B. necessary The mandate is neither nor com- legally OAJC’s pelled.10
The record is clear that the order to us is appealed unsup- ported by convincing clear and evidence and must be reversed. letter to the Stepmother’s parte ex court—written six months after the orphans’ court entered the decree terminating paren- tal rights the force and effect of a document filed on —lacks Indeed, remand, the docket. if on court deter- orphans’ mines that Father contemplates Stepmother’s adoption L.J.B., the matter will then return to this Court. While under Court, consideration Stepmother again should once *40 returned, send a letter that her suggesting misgivings have would we remand the case once more because it again has become moot? “potentially”
The
opines
OAJC
that “the
for
of
petition
termination
moot,
Mother’s rights
potentially
is
as it cannot be effected
without Stepmother’s
adoption
attendant
of L.J.B.”
at
OAJC
2512; B.E.,
155-56; T.R.,
§
16
23
(citing
Pa.C.S.
262
prior adoption of is for stepparent adoption and allowance stability of the new purposes protecting integrity J.D.S., added)(quoting Adoption unit” 763 family (emphasis 871)). necessarily engenders This two-step process A.2d Therefore, circumstances. it follows potential changed the child is rele- Stepmother ultimately adopts that whether forward; however, vant it is irrelevant for going purposes of the instant disposing appeal.
Moreover,
have the
to enter termi-
given
power
courts
nation orders
of whether a
regardless
subsequent adoption
occurs, it seems me that the
of the order
actually
propriety
simply
stepparent expresses
is not mooted
because
reser-
stated,
vation about
with the
have
proceeding
adoption. We
mootness
involve
who
presenting
problems
litigants
[C]ases
clearly
standing
litigation.
had
to sue at the outset of the
problems
The
arise from events
after the lawsuit
occurring
gotten
way changes
has
under
the facts or in the law—
—
allegedly
which
deprive
litigant
necessary stake
the outcome. The mootness doctrine
that “an
requires
review,
actual
must be extant at all
controversy
stages of
not
at the time the
merely
complaint is filed.”
Gross,
(1978)
In re
476 Pa.
382 A.2d
(quoting
119
(9th
Gunther,
ed.1975));
Gerald
Law
Constitutional
see
Cain,
(1991).
also In re
527 Pa.
In the instant
sought by
result
Father was termi-
*41
nation of Mother’s parental
rights. Father obtained this
result,
affirmed,
the Superior Court
and Mother sought this
Court’s review. The fact that Stepmother has
she
indicated
may
Indeed,
not
with the
proceed
adoption changes nothing.
all that
necessary
was
for termination of Mother’s parental
rights was that Stepmother contemplated adoption throughout
B.E.,
(stat-
the termination proceedings. See
This act upon potentialities Court should not set forth jurisdic- “letters” from the post-appeal parties. There are no impediments entry tional to our review of the of the decree the basis forming appeal, for this the certified record is not so encumbered, and we have a record which to complete upon A requisite inquiry. purpose conduct our remand for the embraced unnecessary, fraught OAJC is with uncer- tainties, only serves to stall this in its tracks. appeal treat- Stepmother’s musings regarding post-decree Father’s her, ment of while credence to reversal of on lending this case the merits in light startling similarity of their to Father’s Mother, treatment of should not serve to what postpone clearly accomplished by would be reversal of the instant facts, decree. Based the instant a remand need not and upon only should not occur as it serves to delay already protracted litigation.11 goes saying It without if reversal of the decree concludes the matter, orphans’ there is neither need nor reason to criticize the court sponte. Stepmother’s post-appeal or order its recusal sua will wishes Moreover, only forthcoming. be relevant if a new there is no custody dispute presently. proceedings before us If and when such occur, parties requests they are free to assert recusal believe are compelled at that time.