In the Int. of: Z.E., Appeal of: M.E. ( 2019 )

J-A10011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.E., MOTHER :
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: No. 3577 EDA 2018
Appeal from the Order Entered November 5, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): 64 O.C.A. 2018
IN THE INTEREST OF: J.R.E., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.E., MOTHER :
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: No. 3624 EDA 2018
Appeal from the Order Entered November 5, 2018
In the Court of Common Pleas of Monroe County Orphans' Court at
No(s): 65 O.C.A. 2018
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM PER CURIAM: FILED AUGUST 12, 2019
M.E. (Mother) appeals1 from the orders, entered in the Court of Common
Pleas of Monroe County, denying her petitions to involuntarily terminate
Father’s parental rights to the parties’ minor children, J.R.E. (born (1/2009)
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1On January 14, 2019, our court sua sponte consolidated these appeals. See
Pa.R.A.P. 513.
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and Z.E. (born 3/2012) (collectively, Children). After careful review, we
reverse and remand for further proceedings.2
Mother was raped by Father on a daily basis for nearly twenty years,
beginning when she was just a four-year-old child. The sexual abuse started
in Wayne County, Michigan, where Father lived with Mother, Mother’s mother,
and Mother’s siblings. The abuse continued when Mother moved with Father
and her two younger siblings to Wayne and Lackawanna Counties in
Pennsylvania. Mother learned that Father was not her biological father, but
her adoptive father, when she was eighteen years old.3 Mother moved to
Antrim County, Michigan, with Father and Mother’s brother, after Mother
graduated from high school. In Michigan, Father held Mother out to be his
wife, publically claiming that they were married.
As a result of Father’s continued abuse, Mother bore Children in 2009
and 2012.4 When J.R.E., the parties’ daughter, turned four years old, Mother
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2 Neither Father nor Children’s Guardian ad litem has filed a brief in this
appeal. Attorneys for the Barbara J. Hart Justice Center, a project of the
Women’s Resource Center, have joined in Mother’s appellate brief.
3 Mother testified that when she became pregnant with J.R.E. and feared that
the child could suffer deformities as the product of incest, Father told Mother
that he was not her biological father. Father adopted Mother after he married
Mother’s mother, who was pregnant with Mother at the time they were
married. Mother avers that Father is listed on Mother’s birth certificate as her
biological father. Termination Petition, 8/18/18 at ¶ 8.
4 Mother testified at the termination hearing that paternity tests were
performed to prove that Father is Children’s biological father. Termination
Hearing, 10/29/18, at 24.
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feared that Father would start sexually abusing J.R.E. as he had done to
Mother. As a result, Mother reported Father’s history of sexual abuse to
Michigan authorities. Father was arrested in September 2013. In July 2014,
Father entered guilty pleas in Michigan to two counts of criminal sexual
conduct; he was sentenced to two 10-15 year terms of imprisonment on the
sexual offenses.5 Three months later, in October 2014, Father entered guilty
pleas in Michigan to three counts of criminal sexual conduct with a person
under thirteen years of age6 and was sentenced to three concurrent sentences
of 15-50 years’ imprisonment. In July 2015, Father entered guilty pleas in
Pennsylvania to nine separate counts of sexual crimes, including rape/forcible
compulsion,7 involuntary deviate sexual intercourse (IDSI) of a person less
than 16 years old,8 and aggravated indecent assault of a person less than 16
years old.9 Father was sentenced to serve 44-128 years in prison on those
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5 See Mich.Comp.Laws § 750.520b(2). In an unrelated matter, Father also
entered a guilty plea to conspiracy to commit insurance fraud, involving an
arson at his home, at the same time of the sexual criminal conduct pleas. A
Michigan judge sentenced him to 4-10 years of imprisonment on that charge.
6 Mich.Comp.Laws § 750.520b(1)(a).
7 18 Pa.C.S. § 3121.
818 Pa.C.S. § 3123(a)(7) (IDSI where complainant less than 16 years of age
and offender four or more years older than complainant and complainant and
offender are not married to each other).
9 18 Pa.C.S. § 3125(a)(8) (aggravated indecent assault where complainant
less than 16 years of age and offender four or more years older than
complainant and complainant and offender are not married to each other).
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charges. Father is required to register as a sexual offender in both Michigan
and Pennsylvania. Father is currently incarcerated in Michigan and will be
returned to Pennsylvania to serve his Pennsylvania sentence when he finishes
serving his sentence in Michigan.
On August 18, 2018, Mother filed petitions to involuntarily terminate
Father’s parental rights to Children pursuant to 23 Pa.C.S. §§ 2511(a)(7),
(a)(10) and (a)(11) of the Adoption Act. 10 11 12 In her petition Mother seeks
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10 Under section 2511(a)(7), a parent’s rights may be involuntarily terminated
if “[t]he parent is the father of a child conceived as a result of a rape or incest.”
23 Pa.C.S. § 2511(a)(7).
11 Parental rights may be involuntarily terminated under section 2511(a)(11)
where “[t]he parent is required to register as a sexual offender under 42
Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders) or I
(relating to continued registration of sexual offenders) or to register with a
sexual offender registry in another jurisdiction or foreign country. 23 Pa.C.S.
§ 2511(a)(11).
As an aside, we note that Legislation is currently pending to amend section
2511(a)(9) to include rape, IDSI, sexual assault and aggravated indecent
assault to the list of offenses for which a parent’s rights could be involuntarily
terminated if he or she has been convicted of one of those crimes. See 2019
Bill Text PA S.B. 120 (introduced Jan. 28, 2019). Notably, Father was
convicted of three of these listed offenses in Pennsylvania.
12 Under section 2511(a)(10), parental rights may be involuntarily terminated
if:
The parent has been found by a court of competent jurisdiction to
have committed sexual abuse against the child or another child
of the parent based on a judicial adjudication as set forth in
paragraph (1)(i), (ii), (iii) or (iv) or (4) of the definition of
“founded report” in section 6303(a) (relating to definitions) where
the judicial adjudication is based on a finding of “sexual abuse or
exploitation” as defined in section 6303(a).
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“to protect herself and her young and vulnerable children from further
exposure to a convicted child rapist;” she avers that she does not intend to
place Children up for adoption, but plans to “continue to exercise full custody
over her children until they reach the age of majority.” Termination Petition,
8/18/18, at 1, ¶ 16. Mother contends that Father “is a statutorily unfit parent
who is not entitled to any physical custody, legal custody, or visitation with
his biological children.” Id. at ¶ 45.13 Since Father’s incarceration, Mother
has been the sole financial provider for Children and has had primary physical
and primary legal custody of Children. Father has not seen or communicated
with Children since his arrest in 2013.
After a termination hearing14 held on October 29, 2018, the trial court
denied Mother’s termination petitions. Mother filed timely notices of appeal
and court-ordered Pa.R.A.P. 1925(a)(2)(i) concise statements of errors
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23 Pa.C.S. § 2511(a)(10) (emphasis added).
13 Mother avers that because Father is her adoptive father, he is also her
“legal” father and, thus, section 2511(a)(10) applies where she was the child
victim of his criminal conduct (rape). See Termination Petition, 8/18/18, at
¶¶ 37-39. See n.12, supra; see also 23 Pa.C.S. § 5326 (any rights to seek
legal or physical custody of child shall be automatically terminated upon
adoption).
14 Children were represented by guardian ad litem, Megan M. Reaser, Esquire,
at the termination hearing. See In Re: T.S., 192 A.3d 1080, 1092 (Pa. 2018)
(“[D]uring contested termination-of-parental-rights proceedings, where there
is no conflict between a child’s legal and best interests, an attorney-guardian
ad litem representing the child’s best interests can also represent the child’s
legal interests.”).
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complained of on appeal. Mother presents the following issues for our
consideration:
(1) Whether the trial court, by its [o]rders dated November 5,
2018, erred as a matter of law by denying the [p]etition[s]
to [i]nvoluntarily [t]erminate [Father’s p]arental [r]ights
based on lack of a contemplated adoption, pursuant to the
Pennsylvania Adoption Act[.]
(2) Whether the trial court, by its [o]rders dated November 5,
2018, erred as a matter of law by imposing the requirement
of a contemplated adoption upon [Mother] and not finding,
to the extent the [Adoption] Act required [Mother] to make
such a showing, that such requirement violates [Mother’s]
right to due process under the Fourteenth Amendment of
the United States Constitution[.]
(3) Whether the trial court, by its [o]rders dated November 5,
2018, erred as a matter of law by imposing the requirement
of a contemplated adoption upon [Mother] and not finding,
to the extent the [Adoption] Act required [Mother] to make
such a showing, that such requirement violates [Mother]’s
right to equal protection of the laws under the Fourteenth
Amendment of the United States Constitution.
(4) Whether the trial court, by its [o]rders dated November 5,
2018, erred as a matter of law by imposing the requirement
of a contemplated adoption upon [Mother] and not finding,
to the extent the [Adoption] Act required [Mother] to make
such a showing, that such requirement violates [Mother]’s
rights under the Pennsylvania Constitution, including
without limitation [Mother]’s [civil] rights under Article I, §
26 thereof.
Appellant’s Brief, at 2-3.
Mother first contends that the trial court erred in denying her petitions
to involuntarily terminate Father’s parental rights to Children when she
established, by clear and convincing evidence, that termination is justified
under 23 Pa.C.S. §§ 2511(a) and (b) and would be in Children’s best
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interests.15 She also argues that the trial court incorrectly determined that
termination was improper where Mother did not aver in her termination
petition that an adoption was contemplated pursuant to 23 Pa.C.S. § 2512(b).
The statutory authority to terminate parental rights is found in
Subchapter B of Chapter 25 (Proceedings Prior to Petition to Adopt) in
Pennsylvania’s Adoption Act (Act). 16 The Act is “Part III” of Title 23, our
Commonwealth’s Domestic Relations Code.17 The foreword to the original Act
of 1970 recognized the need to “facilitate the placement for adoption of
children who are considered ‘unadoptable’ under the existing law” and the
“difficulty of the existing law[, Act of April 4, 1925, P.L. 127, to address] the
technical impediments to an effective final termination of a parent-child
relationship.” See Appendix to the Legislative Journal, Proposed Adoption Act,
1970, at 182.
The grounds for involuntary termination of parental rights are set forth
in section 2511 of the Act. See 23 Pa.C.S. §§ 2511(a)(1)-(11), (b). A party
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15 In involuntary termination of parental rights cases, our review is limited to
a determination of whether the decree of the termination court is supported
by competent evidence. Adoption of B.D.S., 431 A.2d 203, 207 (Pa. 1981).
16 23 Pa.C.S. §§ 2101-2938.
17The current version of “Part III” (Adoption Act) was re-reported as amended
and finally approved by the governor on October 15, 1980. This act, known
as Act 163, “amend[ed] Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, [by] adding provisions relating to the termination of
parental-child relationships and adoptions[,] revising certain provisions of the
law relating thereto[,] and making repeals. See H.B. 213 Bill Information
History, Regular Session 1979-80.
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petitioning for termination “must prove the statutory criteria for that
termination by at least clear and convincing evidence.” In re T.R., 465 A.2d
642, 644 (Pa. 1983). Clear and convincing evidence is defined as “testimony
that is so clear, direct, weighty, and convincing as to enable the trier of fact
to come to a clear conviction, without hesitancy, of the truth of the precise
facts in issue.” In re Sylvester, 555 A.2d 1202, 1203-1204 (Pa. 1989).
Section 2512 of the Act designates who may file an involuntary
termination petition and sets forth the required contents of a petition. Section
2512 states, in relevant part:
(a) Who may file. — A petition to terminate parental rights with
respect to a child under the age of 18 years may be filed by any
of the following:
(1) Either parent when termination is sought with
respect to the other parent.
(2) An agency.
(3) The individual having custody [of] or standing in loco
parentis to the child and who has filed a report of intention
to adopt required by section 2531 (relating to report of
intention to adopt).
(4) An attorney representing a child or a guardian ad litem
representing a child who has been adjudicated dependent
under 42 Pa.C.S. § 6341(c) (relating to adjudication).
(b) Contents. — The petition shall set forth specifically those
grounds and facts alleged as the basis for terminating parental
rights. The petition filed under this section shall also
contain an averment that the petitioner will assume
custody of the child until such time as the child is adopted.
If the petitioner is an agency it shall not be required to aver that
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an adoption is presently contemplated []or that a person with a
present intention to adopt exists.[18]
23 Pa.C.S. § 2512(a), (b) (emphasis and italics added). In In re M.R.D., our
Supreme Court reaffirmed the fact that the parent petitioning for the
involuntary termination of the other natural parent’s parental rights under
2512(a) must accompany that request with an averment that adoption is
intended. The Court stated:
Section 2512(a) of the Adoption Act sets forth the parties who
may file a petition for involuntary termination, including, inter alia,
a parent or an agency. 23 Pa.C.S. § 2512(a). In contrast to an
agency petition, a parent petitioning to terminate the rights of the
child’s other parent must file a termination petition containing an
averment that the petitioner will assume custody of the child until
such time as the child is adopted. [Id. at] § 2512(b). Thus, the
petitioning parent must demonstrate that an adoption of the child
is anticipated in order for the termination petition to be
cognizable. Section 2512(b)’s adoption requirement is
consistent with the rationale behind permitting the
involuntary termination of a parent’s rights, which is to
dispense with the need for parental consent to an adoption
when, by choice or neglect, a parent has failed to meet the
continuing needs of the child, rather than to punish an
ineffective or negligent parent, or provide a means for
changing the surname of the child.
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18 When an agency petitions to involuntarily terminate an individual’s parental
rights to his or her child, that child is presumably already in the care and
custody of the agency, having been determined to be dependent. “[W]hen a
child is in the custody of an approved adoption agency, it is not necessary that
adoption be imminent before the agency may petition to have a parent’s rights
terminated[,] [n]or must a particular adoption plan be established before the
agency’s petition may be sustained . . . [because] [o]ne of the purposes of
the Adoption Act of 1970 was to permit an agency to seek termination of
parental rights independently of an adoption.” In re Burns, 379 A.2d 535,
541 (Pa. 1977) (citation omitted). Thus, pursuant to section 2512(b), an
agency need not aver in its petition to terminate that an adoption is presently
contemplated or that a person with a present intention to adopt exists.
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Id. at 1120 (emphasis added). See In re B.E., supra at 156 (“The purpose
of the involuntary termination provisions of the Adoption Act is not to punish
an ineffective or negligent parent, or provide a means for changing the
surname of the child.”); see also In re E.M.I, 57 A.2d at 1285 (same). Thus,
when a party does not include in his or her termination petition an averment
that there is a corresponding plan for an anticipated adoption, our courts have
held that the threshold requirement of section 2512 has not been met and the
court will not consider the substantive merits of the petition under subsections
2511(a) and (b). See In re E.M.I., 57 A.3d 1278 (Pa. Super. 2012).
Here, Mother’s petitions allege sections 2511(a)(7), (a)(10), (a)(11) as
the grounds for terminating Father’s parental rights; Mother petitioned the
court pursuant to section 2512(a)(1), as a parent seeking to terminate the
rights of the other parent. Mother, however, did not include in her petition
“an aver[ment] that an adoption is presently contemplated [or] that a person
with a present intention to adopt exits.” 23 Pa.C.S. § 2512(b). The trial court
found itself “constrained by the requirements of the Adoption Act and by prior
appellate court decisions to deny [Mother’s] petition for termination . . .
[because] there is no[] ‘contemplated adoption’ to consider.” Trial Court
Opinion, 11/5/18, at 5.
Historically, our courts have recognized that the purpose of involuntary
termination of parental rights is “to dispense with the need for parental
consent to an adoption when, by choice or neglect, a parent has failed to meet
the continuing needs of the child.” In re Male Infant B.E. (In re B.E.), 377
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A.2d 153, 155 (Pa. 1977).19 Chapter 25 of the Act presupposes a petition for
adoption by the individual or agency petitioning to terminate parental rights.
Thus, “[a section 2512] termination petition filed by one parent against the
other must occur in the context of an anticipated adoption.” In re Adoption
of M.R.D., 145 A.3d 1117, 1120 (Pa. 2016); In re E.M.I., supra (petition to
terminate natural parent’s rights filed by other natural parent under section
2512(a)(1) cognizable only if adoption of child foreseeable). Under such
circumstances, termination “permits the child and the adoptive parent or
parents to establish a new parent-child relationship.” In re B.E., 377 A.2d at
156. Therefore, a natural parent who petitions the court to terminate the
rights of the other parent necessarily requires the petitioning parent also
relinquish his or her parental rights in order to free his or her child for
adoption. In re Adoption of R.B.F., 803 A.2d 1195, 1199 (Pa. 2002); 23
Pa.C.S. § 2711(d)(1) (consents necessary to adoption). The only exception
to this rule is if the petitioning parent’s spouse intends to adopt the child. See
23 Pa.C.S. §2903 (spousal exception provision available only in private family
adoptions, upon marriage or remarriage of biological father or mother; where
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19 Notably, In re B.E. was decided under 1 P.S. § 312 (repealed and replaced
by 23 Pa.C.S. § 2512, effective Jan. 1, 1981). Like current section 2512,
section 312 also “indicate[d] that a parent may bring a petition for termination
of the parental rights of the other parent only when adoption is contemplated.”
In re Adoption of L.B.J., 18 A.3d 1098, 1107 (Pa. 2011), citing In re B.E.,
377 A.2d at 155; In re Burns, 379 A.2d at 541. The comment to section 312
noted that the contemplated adoption language of that section “is intended to
assure that some agency or person is responsible for the child pending his [or
her] adoption.” Appendix to the Legislative Journal, Proposed Adoption Act,
1970, Comment, at 185.
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natural parent consents to adoption of child by natural parent’s new spouse,
natural parent retains parental rights to child).
Our Courts have repeatedly stated that to effectuate an adoption, which
is a statutory right, parties must strictly comply with the provisions of the Act.
In re Adoption of E.M.A., 409 A.2d 10, 11 (Pa. 1979); In re R.B.F., 803
A.2d at 1199. Thus, “where no new parent-child relationship is
contemplated[, which is the ‘singular concern’ of the Adoption Act,] . . . the
involuntary termination of . . . parental rights . . . is not permitted[.]” In re
L.B.J, 18 A.3d at 1108 (citation omitted); In re T.R., 465 A.2d 642, 644 n.10
(Pa. 1983).
Applying section 2512(b)’s contemplated adoption requirement to the
unique facts of this case creates an absurd result where Mother, a capable and
fit single parent20 who has been the tragic victim of rape committed at Father’s
hand for decades, cannot remain Children’s legal Mother and seek termination
of Father’s, her rapist’s, parental rights. Children’s guardian ad litem
acknowledges that terminating Father’s parental rights would be in Children’s
best interests. See N.T. Termination Hearing, 10/29/18, at 29 (“I do
understand where Mom is coming from and it probably would be in [C]hildren’s
best interest not to have that tie [with Father] so that he doesn’t have that
ability to even try [to contact [C]hildren.”). Moreover, the trial court
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20 Guardian ad litem, Megan Reaser, noted at the termination hearing that
Children appear “happy” and “healthy.” N.T. Termination Hearing, 10/29/18,
at 28.
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recognized that “[t]here are clearly grounds for [termination] under [s]ection
2511(a)(7), (a)(10), and (a)(11), as sought.” See Trial Court Opinion,
11/5/18, at 5. It is doubtful that the legislature would have intended such a
result where a fit parent seeks to ensure his or her family’s safety and prevent
them “from further exposure to a sexually violent predator.” Appellant’s Brief,
at 3.21 See 1 Pa.C.S. § 1922(1) (General Assembly does not intend a result
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21 We note that House Bill 1682, No. 2253, Session of 2017, was referred to
the judiciary committee on July 24, 2017. Bill 1682 would remove the
requirement that a parent of a child conceived by rape or incest would have
to aver that an adoption is presently contemplated in order to terminate the
parental rights of the other offending parent. The Bill, co-sponsored by
Representative Michael H. Schlossberg, would add subsection (b)(2) to section
2512, stating “It shall not be required to aver that an adoption is presently
contemplated nor that a person with a present intention to adopt exists if any
of the following apply: (i) the petitioner is an agency; (ii) the child was
conceived as a result of rape or incest.” House Bill 1682, No. 2253, Session
of 2017, 7/24/17, at 1-2.
We also note that Senate Bill 354, No. 344, Session of 2019, has recently been
referred to the judiciary committee. Bill 354 would add subsection (a.1) to 23
Pa.C.S. § 2511, which would impose “mandatory termination” of the rights of
a parent where a petition has been filed alleging that the parent has been
convicted of, among other things, rape, IDSI and aggravated assault in which
the victim of the crimes was the child. In such cases, if those “grounds [are]
determined . . . to have been proved and a determination is made by the court
that the termination is in the best interests of the child,” termination would
occur. Senate Bill 354, No. 344, Session 2019, 3/4/19, at 2. While here
Children are not the victims of Father’s criminal acts, Mother, who is Father’s
adoptive child, is his legal child. Thus, presumably, Father’s rights could be
mandatorily terminated under this proposed bill were it to be enacted into
legislation. We note, however, that the proposed bill does not account for the
contemplated adoption requirement under section 2512, a jurisdictional
prerequisite to a court’s substantive termination analysis -- the issue
preventing Mother from terminating Father’s rights in this case.
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that is absurd, impossible of execution or unreasonable).22 In fact, in In re
R.B.F., our Supreme Court recognized that “[i]t is a settled rule that in the
construction of statutes an interpretation is never to be adopted that would
defeat the purpose of the enactment, if any other reasonable construction can
be found which its language will fairly bear.” Id. 803 A.2d at 1203.
Mother’s position is not unique; in fact, the plight of parents in her exact
situation is widespread. In 2015, the 114th United States Congress proposed
legislation directing the United States Attorney General to provide grants to
states that have laws in place which terminate the parental rights of men who
father children through rape.23 See H.R. 1257, 114th Cong. (2015-2016)
(Rape Survivor Child Custody Act). The findings of this act recognize “that
there are between 25,000 and 32,000 rape-related pregnancies annually in
the United States.” Id. at § 2, Findings. In 2015, the act became law as part
of the Justice for Victims of Trafficking Act. See P.L. No. 114-22 (5/29/15),
Title IV – Rape Survivor Child Custody Act, § 404. Currently, 30 states allow
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22 Interestingly, a 1979 House of Representative’s bill suggested amending
the Adoption Act of 1970 to provide for the forfeiture of parental rights in
similar circumstances, stating, “No person shall have any parental rights
involving children who were conceived as a result of rape for which he was
convicted.” H.B. 213, Regular Session 1979-1980, § 311.1 (Pa. 1979).
Unfortunately, that suggested language was never included in our Adoption
Act. It, however, would solve the problem we are presented with today.
23 The act provides grants to states that have enacted “a law that allows the
mother of any child [who] was conceived through rape to seek court-ordered
termination of the parental rights of her rapist with regard to that child, which
the court is authorized to grant upon clear and convincing evidence of rape.”
See 34 U.S.C. § 21303.
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for the termination of parental rights of perpetrators of sexual assault who
father a child as a result of their actions, while 20 states allow some form of
restriction on the parental rights of those perpetrators. National Conference
of State Legislatures, Parental Rights and Sexual Assault (4/17/17),
http://www.ncsl.org/research/human-services/parental-rights-and-sexual-
assault.aspx. In addition, “nearly 30 bills have been introduced in 17 states
during the 2017 legislative session addressing some aspect of [the] parental
rights . . . of perpetrators.” Id. Our own state legislature has restricted the
custody and visitation rights of perpetrators like Father. See 23 Pa.C.S. §
5329.24 Pennsylvania has yet to do so, however, in the termination context.
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24We recognize that under the Custody Act, Part VI of the Domestic Relations
Act, Mother can ensure that Father will have no right to legal or physical
custody of Children. In 2015, Pennsylvania State Senator Randy Vulakovich
authored a Co-Sponsorship Memorandum acknowledging the very situation
we are presented with today. In his memo, Senator Vulakovich stated:
Currently, Pennsylvania law only allows for the termination
of parental rights of convicted rapists pending adoption. As
it stands, if a victim of rape chooses to keep the child conceived
as a result of the rape, she could be forced to interact with the
perpetrator on a regular basis through visitation. In addition, if a
victim chooses to prosecute her abuser and retain parental rights
of the child, the abuser could threaten to pursue custody or
visitation with the child if the victim does not drop the charges.
Furthermore, if the parental rights of the offender are terminated,
the obligation to pay child support is also terminated.
Senate Co-Sponsorship Memorandum (Session of 2015-2016) by Senator
Randy Vulakovich, 2/6/15 (emphasis added). That same year, section 5329
of the Custody Act was amended to include language addressing Senator
Vulakovich’s concerns. That section provides:
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(b.1) Parent convicted of certain sexual offenses.--
(1) Notwithstanding any provision of this chapter to the
contrary and subject to paragraph (2), if a parent who is
a victim of any of the offenses set forth in this
paragraph objects, no court shall award any type of
custody set forth in section 5323 (relating to award
of custody) to the other parent of a child conceived as
a result of any of the following offenses for which the
other parent has been convicted:
18 Pa.C.S. § 3121 [rape].
* * *
(2) A court may award any type of custody set forth in
section 5323 to a parent who has been convicted of an
offense under paragraph (1) if:
(i) the parent who is a victim had an opportunity to address
the court;
(ii) the child is of suitable age and consents to the custody
order; and
(iii) the court determines the award is in the best interest
of the child.
(3) Paternity of the child shall be established by voluntary
acknowledgment of paternity or blood, genetic or other paternity
testing acceptable to the court. The cost of the testing shall be
borne by the parent who was convicted of the offense.
23 Pa.C.S. § 5329 (b.1) (emphasis added).
Mother is aware of this protection that is afforded to her and Children
under section 5329, noting in her termination petition that “[b]ecause [Father]
pled guilty to two violations of 18 Pa.C.S. § 3121[, rape,] he has no right to
any physical or legal custody of [Children or any] right to any visitation with
[Children]” under section 5329. Termination Petition, 8/18/18, at ¶¶ 46-47.
Therefore, if Mother appropriately objects, Father will be precluded from
having any form of legal or physical custody of Children. While we are
confident that section 5329(b.1) can effectively prevent Father from
exercising his custodial or visitation rights to Children, we sympathize with
Mother’s prayer to sever all legal ties that Father has to Children.
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Recent cases discussing section 2512(b)’s contemplated adoption
requirement involve situations where the petitioner is seeking termination of
the other parent’s parental rights as a precursor to the adoption process. See
In re M.R.D., supra (proposed grandparent adoption); In re J.B., supra
(same); In re J.M. (same); see also In re R.B.F., supra (proposed same-
____________________________________________
We also note that pursuant to 23 Pa.C.S. § 4321, a parent is liable for the
support of his or her unemancipated child, aged 18 years or younger:
[W]hether or not parental rights of the parent have been
terminated due to a conviction for any of the following where the
other parent is the victim and a child has been conceived as a
result of the offense:
(i) 18 Pa.C.S. § 3121 (relating to rape);
(ii) 18 Pa.C.S. § 3122.1 (relating to statutory sexual
assault);
(iii) 18 Pa.C.S. § 3124.1 (relating to sexual assault) where
the offense involved sexual intercourse;
(iv) 18 Pa.C.S. § 3124.2 (relating to institutional sexual
assault) where the offense involved sexual intercourse; or
(v) 18 Pa.C.S. § 4302 (relating to incest) where the offense
involved sexual intercourse.
Paternity of the child under this paragraph shall be established
through voluntary acknowledgment of paternity or blood, genetic
or other type of paternity test acceptable to the court. The cost of
the testing shall be borne by the parent who was convicted of the
offense.
23 Pa.C.S. § 4321(2.1). Thus, Father is still responsible to pay support
for Children until they become emancipated and reach the age of 19.
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sex parent adoption); In re E.M.I., supra (same). However, that is simply
not the situation in the present case.
First, it is not necessary that Children be adopted. Mother is a fit and
able parent who has been singularly caring for her Children’s emotional,
physical and social well-being their entire lives. Thus, there is no need to
establish a “new ‘parent-child’ relationship.” In re L.B.J, supra; In re T.R.,
supra; In re B.E., supra. Second, Mother has no intention to subvert the
adoption process in seeking termination of Father’s parental rights to Children.
She is not seeking termination in order to change Children’s surname or
punish Father for being ineffective or merely negligent. Cf. In re B.E., supra
(case decided over twenty-five years ago, noting “singular concern of the
Adoption Act” is to “establish a new ‘parent-child’ relationship” and in order to
achieve that goal, through the termination of the natural parents’ rights, must
include contemplated adoption). Rather, Mother is looking to sever Father’s
parental rights to Children as a result of his criminal and sexually predatory
behavior perpetrated against Mother for over 20 years, in an effort to put an
end to a cycle of abuse, and to provide Children with a chance to grow up in
a loving, supportive and caring home with no fear of reprisal from Father.
Therefore, requiring Mother to aver a contemplated adoption under section
2512(a)(1) defeats the purpose of the statute’s enactment. R.B.F., supra.
See also M.R.D., supra (purpose of contemplated adoption provision is to
dispense with need for parental consent to an adoption when, by choice or
neglect, parent has failed to meet continuing needs of child).
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R.B.F. involved two companion cases where same-sex partners of the
respective petitioners sought to formalize their parental relationship with the
petitioners’ children, while at the same time permit the legal parents to retain
their parental rights to children. The Supreme Court remanded the case to
the trial court for a hearing to determine whether petitioners could
demonstrate, by clear and convincing evidence, cause as to whether the
“purpose of [s]ection 2711(d)’s relinquishment of parental rights requirement
will be otherwise fulfilled or is unnecessary under the particular circumstances
of [their] case[s].” 803 A.2d 1203. The R.B.F. Court relied on section 2901
of the Act upon to support its remand decision, which states, in relevant part:
Unless the court for cause shown determines otherwise, no decree
of adoption shall be entered unless the natural parent or parents’
rights have been terminated . . . and all other legal requirements
have been met.
23 Pa.C.S. § 2901. In coming to its decision, the Court recognized that “there
is no other reasonable construction of the [s]ection 2901 ‘cause shown’
language other than to conclude that it permits a petitioner to demonstrate
why, in a particular case, he or she cannot meet the statutory requirements.”
R.B.F., 803 A.2d at 1202-1203.
Similarly, we find that the overwhelming evidence of record “shows
cause” under section 2901 as to why Mother should be relieved of section
2512’s contemplated adoption requirement in order to terminate Father’s
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parental rights.25 Mother has no other legal means to terminate Father’s
parental rights save for the termination provisions found in the Adoption Act
that are a prerequisite to adoption. Where Mother has no intention of placing
Children for adoption, she is being held to a requirement that is simply
“unnecessary under the particular circumstances of [her] case.” Id. at 1203.
Echoing Pennsylvania Supreme Court Justice Debra Todd’s views in In
re M.R.D.,26 “in today’s times, societal norms pertaining to what constitutes
a family are constantly evolving.” Id., at 1129. The time has come to
reevaluate and revisit the adoption and termination of parental rights
processes under our current law. To force Mother to either marry so she can
have her new spouse adopt Children to fulfill section 2512’s contemplated
adoption requirement, or compel her to relinquish her own parental rights to
Children to ensure their safety from Father, is simply senseless and an
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25 The hurdle in this case for Mother is the contemplated adoption
requirement. Because we conclude that Mother is excused from the
requirement that she place her Children for adoption, this necessarily
dispenses with the requirements under section 2711(d) that she relinquish her
own parental rights to Children or re-marry under section 2903. Cf. M.R.D.,
145 A.3d at 1129 (where mother petitioned to have father’s rights terminated
and maternal grandfather adopt child, because she did not meet burden of
showing proposed adoption would serve underlying purpose of
relinquishment, mother was not excused from requirement that she relinquish
her parental rights under section 2711).
26 We, too, are cognizant of the ever-changing landscape of the family unit.
In fact, in 2016 roughly 23% of children in the United States, under the age
of 18, were living in single-mother households, like the current case.
https://www.census.gov/data/tables/2018/demo/families/cps-2018.html
(last visited 5/13/19).
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abomination under the circumstances. See Commonwealth ex re. Grimes
v. Yack, 433 A.2d 1363, 1382 (Pa. Super. 1981) (“The relationship between
parent and child should be broken only with the greatest reluctance.”) (citation
omitted). One can hardly envision how forcing Mother to make this kind of
choice promotes the best interests of Children, which is of paramount
importance in such matters.27
Thus, we reverse the orders denying Mother’s petitions to involuntarily
terminate Father’s parental rights to Children. In doing so we are mindful to
limit the holding of this case to its facts so that “[t]he exercise of such
discretion does not open the door to [terminating the parental rights of one
parent by another parent when adoption is not contemplated], R.B.F., 803
A.2d at 1202, and to “ensure that we do not open the floodgates to . . .
gamesmanship.” In re M.R.D., 145 A.3d at 1129 (where Supreme Court
denied mother’s petition to terminate father’s parental rights, cautioning
Mother’s actions “open[ed] the door to the misuse of adoption proceedings by
spiteful parents as a means to involuntarily terminate the rights of unwanted
parents, potentially allowing grandparents, cousins, pastors, coaches, and a
litany of other individuals who have a close relationship with a child to stand
in as prospective adoptive parents so that termination may be achieved.”).
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27 The irony is not lost on us that the Adoption Act permits “any individual” to
adopt a child in this Commonwealth, which necessarily includes a single
parent, yet Mother is forced to relinquish her own parental rights and put
Children up for adoption under section 2512 if she wants to terminate Father’s
rights. See 23 Pa.C.S. § 2312 (section of Adoption Act stating that “[a]ny
individual may become an adopting parent.”).
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We remand this case to the trial court to proceed with termination
proceedings, including a full and proper hearing, as Mother has demonstrated
cause for her non-compliance with the contemplated adoption requirement of
section 2512(a)(2).
Orders reversed.28 Case remanded for proceedings consistent with this
decision. Jurisdiction relinquished.29
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/19
____________________________________________
28 There seems to be no question that, substantively, Father’s rights could be
involuntarily terminated under sections 2511(a)(7) and (11) of the Adoption
Act. Moreover, based on the horrific history of abuse that Father perpetrated
upon Mother and the circumstances under which Children were conceived, it
is also evident that terminating Father’s parental rights would benefit the
“developmental, physical and emotional needs and welfare of” Children under
section 2511(b). However, upon remand the court must conduct the proper
involuntary termination inquiries at a hearing.
29Having disposed of Mother’s appeal on the basis of her first issue, we need
not address the remaining constitutional issues she raises on appeal.
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