In Re: Adopt. of M.R.D. and T.M.D. Appeal of: M.C. ( 2016 )

[J-59-2016] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: ADOPTION OF: M.R.D. AND : No. 26 MAP 2016
T.M.D., MINOR CHILDREN :
: Appeal from the Order of the Superior
: Court at No. 1728 MDA 2013 dated
APPEAL OF: M.C., NATURAL FATHER : December 8, 2015 Affirming the Order
: of the Lycoming County Court of
: Common Pleas, Orphans Division, at
: No. 6365, dated August 19, 2013.
:
: ARGUED: May 10, 2016
CONCURRING OPINION
JUSTICE BAER Decided: August 29, 2016
I concur in the result, as I agree that the Adoption Act, 23 Pa.C.S. §§ 2101-2938,
precludes termination of Father’s parental rights to allow Grandfather to adopt the
children and become a parent together with Mother. I write separately to explain my
analysis because I believe the majority’s test would allow for third-party adoptions not
permitted by the Adoption Act. Additionally, I write to express my disagreement with the
special concurrence’s call upon the legislature to allow for termination of a parent’s
rights when there is no contemplated adoption.
To me, this case is straight-forward. The question we must answer is whether
Mother and Grandfather may be legal co-parents of the children. The answer to that
question is “no” because the statute allows Mother to be a legal co-parent only with her
spouse. See 23 Pa.C.S. § 2711(a)(3), (d)(1) (requiring a parent to relinquish parental
rights when her child is adopted by another party); 23 Pa.C.S. § 2903 (providing an
exception to the relinquishment requirement “[w]henever a parent consents to the
adoption of his child by his spouse”). As Grandfather is not and never can be Mother’s
spouse, he may never be a legal parent of these children together with Mother.
Accordingly, there can be no adoption, and, therefore, Father’s rights cannot be
terminated because the Adoption Act, supported by wise public policy, mandates that
children maintain two parents.
In my opinion, the majority places undue emphasis on In re Adoption of R.B.F.,
803 A.2d 1195 (Pa. 2002), which did not involve termination of parental rights, and is
not controlling under the facts of this case. In R.B.F., the children at issue had only one
parent, and the same-sex, long-term committed parties sought to add a second parent.
The R.B.F. court opined that not allowing the couples at issue an opportunity to excuse
the statutory requirement that the biological parent relinquish his rights unless the
adopting party was his spouse seemed absurd because the couples “could have filed
their adoption petitions with the requisite unqualified consent of the legal parent,
including the relinquishment of parental rights, and then seek to adopt their children
jointly.” R.B.F., 803 A.2d at 1203.
Moreover, R.B.F. did not hold that same-sex couples, in fact, necessarily
established cause to excuse the spousal requirement; but rather held that Section 2901
of the Adoption Act “affords the trial court discretion to determine whether, under the
circumstances of a particular case, cause has been shown to demonstrate why a
particular statutory requirement has not been met.” R.B.F. at 1197 (discussing 23
Pa.C.S. § 2901). Ultimately, we remanded to the trial court to determine whether the
petitioning same-sex couples could “demonstrate, by clear and convincing evidence,
cause as to whether the purpose of Section 2711(d)’s relinquishment of parental rights
requirement will be otherwise fulfilled or is unnecessary under the particular
circumstances of each case.” Id. at 1203.
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In the case before us, distinct from R.B.F., the spousal exception to the
relinquishment requirement is neither fulfilled nor unnecessary because Grandfather
stands in a completely different relationship to Mother than that contemplated by the
statute. Here, the spousal requirement does not create an absurd result, as it did in
R.B.F. where there was no other legal parent and the law then extant prohibited same-
sex couples from marrying. Instead, the spousal requirement in this scenario functions
exactly as the legislature intended: to prevent individuals who are not spouses of a
parent from adopting together with the parent. Thus, Mother and Grandfather cannot
establish cause pursuant to Section 2901 to excuse the requirement that the adopting
party in this situation be Mother’s spouse.
Accordingly, I respectfully disagree with the majority’s proposition that the
Section 2901 “cause analysis” when a parent seeks to excuse the spousal requirement
is whether the contemplated adoption will “promote a new family unit.” Maj. Op. at 19.
This language is not present in Section 2901 or any other provision in the Adoption Act.
If this were the test, then a parent could terminate the other parent’s rights in favor of a
long-term, live-in partner so long as the parties intended to live together with the
adopted child(ren) as a family. The statute simply does not support this scenario, and
our decision applying Section 2901 expressly admonished against such an
interpretation of the cause analysis. R.B.F., 803 A.2d at 1202 (noting our decision
“does not open the door to unlimited adoptions by legally unrelated adults”).
Relatedly, I note that the majority equates partners with spouses, so as to imply
that R.B.F. established that long-term committed partners could show cause to excuse
the spousal requirement under these circumstances. See Maj. Op. at 20 (“[R]ather than
being involved in a committed, horizontal relationship such as stepparents or same-sex
partners, Mother and Grandfather share a vertical, parent-child relationship.”). With
[J-59-2016] [MO: Todd, J.] - 3
great admiration for my distinguished colleagues, I am constrained to disagree. The
Adoption Act does not excuse the spousal requirement for long-term committed
couples, and neither did R.B.F. R.B.F. simply held that same-sex couples were not
necessarily precluded from adopting as co-parents at a time when they could not marry
and where there was no second legal parent whose rights had to be terminated. As this
case does not present us with a long-term committed partner, and we have never
decided that a long-term committed partner necessarily could excuse the spousal
requirement, I would not speak to the issue.
We should acknowledge and applaud the wise public policy adopted by our
legislature in the Adoption Act: the ideal family for children is two parents together in an
intact marriage. This may be a traditional notion, but it is rooted in the belief that
children benefit from permanency. See, e.g., 42 Pa.C.S. § 6301 (setting forth one of the
purposes of the Juvenile Act, 42 Pa.C.S. §§ 6301-6375, is “[t]o preserve the unity of the
family whenever possible or to provide another alternative permanent family when the
unity of the family cannot be maintained”); In re T.S.M., 71 A.3d 251, 269 (Pa. 2013)
(acknowledging the “the need [in dependency proceedings] to expedite children’s
placement in permanent, safe, stable, and loving homes”). Even in a modern age
where non-traditional families may exist, marriage is the best legal proxy of permanency
for children. It is much more difficult to extricate one’s self from a marriage than
cohabitation. Notwithstanding, my discussion should not be read as disparaging non-
traditional families. Like my colleagues, I appreciate that families of all varieties can and
do flourish. Nevertheless, it is beyond cavil that children are entitled to permanency,
and the best model to ensure that permanency is to have children parented by two
parents in a permanent relationship—a marriage.
[J-59-2016] [MO: Todd, J.] - 4
Because of my strong belief that the Adoption Act strikes the proper balance of
seeking permanency for children and protecting them when necessary, I disagree with
the special concurrence’s call upon the legislature “to revisit the adoption and
relinquishment requirements for termination of parental rights under the [Adoption] Act”
to allow for single parents to terminate the other parent’s rights without the requisite
contemplated adoption.1 Slip. Op. at 2 (Todd, J., specially concurring). The special
concurrence’s request seems to overlook that the interests of children supersede the
interest of parents. In light of the benefits that come with two parents, even when one is
absent, I believe our legislature has adopted a child-focused statute which should not
be changed.
In my view, the law is loath to leave children with only one parent, as children
derive no benefit from having a parent’s rights terminated, unless a new, committed
parent is ready, willing and able to take that terminated parent’s place. Terminating a
parent’s rights, even one who is currently uninvolved in the child’s life, removes the
child’s ability to inherit from and through that parent as well as the potential of future
emotional and financial support from that parent. Terminating an uninvolved parent’s
rights does not remedy any harm caused by that parent’s absence in the child’s life.
The only benefit of terminating a non-involved parent’s rights without substituting a new
parent is arguably to the involved parent: it removes the involved parent’s fear that the
non-involved parent will have a change of heart and want a relationship with the child
(which may, in the long term, benefit the child); it removes the risk to the involved parent
of having to litigate child custody; it dispels the involved parent’s feeling that his or her
efforts are underappreciated in the eyes of the law, etc.
1
I note that Mother did not argue this point, and therefore, my discussion is in response
to the special concurrence’s assertions only.
[J-59-2016] [MO: Todd, J.] - 5
The special concurrence’s call upon the legislature to allow termination of
parental rights without substituting a new parent focuses on the involved parent and
contains no discussion of a purported benefit to children: “[I]n today’s society, . . . there
are situations where . . . it is unfair to require a single parent to have a spouse or
partner as a prerequisite to seeking the termination of the rights of the child’s other
legal, but absent, parent.” Slip. Op. at 2. While I respect and appreciate the vitally
important and often-times challenging role of single parents, our laws protecting children
are properly focused on the bests interests of children, rather than unfairness to
parents.
Moreover, as Justice Wecht aptly articulates in his concurring opinion, allowing
one parent to seek termination of the other without spousal substitution will open the
door for misuse in domestic relations cases. It cannot be denied that emotions run high
in family court, and parents often blame each other for not doing enough for their
children. If we permit the termination of parental rights simply because one parent
accuses the other parent of being a non-involved parent—be it non-payment of child
support, failure to exercise custodial rights, or some other omission—then the courts will
be inundated with requests to deprive children of one of their parents. Respectfully, I
cannot agree that the legislature should create a cause of action that will allow parents
to seek vindication and retribution against each other, at the expense of their children.
[J-59-2016] [MO: Todd, J.] - 6