Adoption of: M.C.F., Appeal of: C.F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF M.C.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.F. :
:
:
:
:
: No. 1309 WDA 2019
Appeal from the Order Entered June 20, 2019,
in the Court of Common Pleas of Jefferson County,
Orphans' Court at No(s): No. 36A-2018 O.C.
IN RE: ADOPTION OF M.N.F. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: C.F. :
:
:
:
:
: No. 1310 WDA 2019
Appeal from the Order Entered June 20, 2019,
in the Court of Common Pleas of Jefferson County,
Orphans' Court at No(s): 35A-2018 O.C.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 14, 2020
In these consolidated appeals, the orphans’ court granted the petitions
Appellee L.H.G. (Mother) filed to terminate the parental rights of Appellant
C.F. (Father) to his six-year-old daughter and five-year-old son (collectively,
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* Retired Senior Judge assigned to the Superior Court.
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the Children) pursuant to the Adoption Act. See 23 Pa.C.S.A. § 2511(a)(1),
(a)(2) and (b). Mother averred in her termination petitions that her fiancé,
T.B., intended to adoption the Children.
Procedurally, the matter returns to us following our previous remand.
See In re Adoption of M.C.F., --- A.3d ---, 2020 PA Super 78 (Pa. Super.
March 30, 2020). Father had originally submitted a petition to withdraw and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (2009). Faced with an Anders
Brief and counsel’s application to withdraw, it became our duty to “conduct an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” See Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa. Super. 2015) (footnote omitted). We discovered
such an issue, identified it, and remanded to allow Father’s counsel to submit
an advocate’s brief in accordance with Commonwealth v. Tukhi, 149 A.3d
881, 886 (Pa. Super. 2016).
Father complied and submitted an advocate’s brief. We also allowed
Mother to submit an additional brief. Mother chose not to do so, but her
counsel did submit a letter indicating that Mother and T.B. ended their
relationship and that T.B. no longer intended to adopt the Children. After
review, we vacate the termination orders and remand for further proceedings.
Given our previous remand and our current disposition, we summarize
the facts as follows:
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Mother and Father wed in 2014 and are now divorced. They
are the parents of two children, M.C.F. and M.N.F. 1 The
orphans’ court described the relationship between Mother
and Father as tumultuous, detailing incidents of Father’s
domestic violence. See generally Orphans’ Court Opinion,
6/20/19, 1-9. Mother claimed Father has not been involved
in the Children’s lives since early February 2017.
Mother and her fiancé, T.B., have been together following
Father’s absence. T.B. is trained to work with people who
have intellectual disabilities, which has benefitted M.C.F. as
he is on the Autism spectrum. Mother and T.B. reside
together with the Children and are engaged to be married.
Mother brought petitions to involuntarily terminate Father’s
parental rights under 23 Pa.C.S.A. § 2511(a)(1), (2),
and (b).2 In her termination petitions, Mother averred that
her fiancé, T.B., intended to adopt the Children. Father was
incarcerated at various points throughout the case,
including at the time of the termination hearing on May 23,
2019. The orphans’ court granted the petitions on June 20,
2019. Father appealed.
In re Adoption of M.C.F., at *1 (footnotes original).
The issue of arguable merit we discovered in the course of our
independent review is as follows:
whether Mother demonstrated that valid adoptions were
anticipated to render her termination petitions cognizable,
given that Mother and T.B. were not married when Mother
filed her termination petitions.
Id. at *2.
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1 While M.N.F. is not Father’s biological daughter, he assumed the parental
role and listed his name on her birth certificate.
2Mother filed her petition to terminate Father’s rights to M.C.F. on December
13, 2018. Mother filed her petition regarding M.N.F. on January 31, 2019.
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We do not reach this issue, however, because we cannot overlook the
new facts Mother’s counsel provided to this Court, indicating that Mother and
T.B. are no longer in a relationship and that T.B. no longer wishes to adopt
the Children. To determine the appropriate disposition in light of this
revelation, we are guided by our Supreme Court’s decision in In re Adoption
of L.J.B., 18 A.3d 1098, (Pa. 2011). In L.J.B., a father petitioned for the
termination of a mother’s rights to make way for the stepmother’s adoption
of his child, pursuant to 23 Pa.C.S.A. §§ 2511 and 2512. The trial court
granted the father’s termination petition. While the mother’s appeal was
pending before this Court, the trial court supplemented the record to reflect
correspondence from the child’s guardian ad litem (GAL) and from the
stepmother. The GAL indicated that the stepmother and the father were
divorcing and that the stepmother no longer wished to adopt the child. The
stepmother wrote the court to say that the father no longer permitted the
stepmother to visit the child, and that while the stepmother regarded the child
as her own, the stepmother averred, “at this time I feel it would be best to
drop the adoption.” See L.J.B., 18 A.3d at 1106. This Court did not consider
this supplemental information, and we affirmed the termination in an
unpublished memorandum. Our Supreme Court granted allowance of appeal
and reversed.
The High Court observed that a petition to terminate a natural parent’s
rights involuntarily, when filed by one parent against the other, is only
cognizable when it is accompanied by a prospective stepparent’s intention to
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adopt the child. L.J.B., 18 A.3d at 1107. See also 23 Pa.C.S.A. § 2512(b).
The Court observed further that “[s]uch a rule is sound because termination
of the natural parent’s rights prior to adoption and allowance of stepparent
adoption is for purposes of protecting the integrity and stability of the new
family unit.” Id. at 1108 (citation and quotation marks omitted). The Court
concluded that “where a prospective stepparent, due to separation or pending
divorce with the other natural parent, will no longer complete the family unit,
the termination of a natural parent’s rights due to abandonment must be
vacated.” Id. Thus, the Supreme Court vacated the termination orders and
remanded the matter “for an immediate hearing and final determination
regarding [the stepmother’s] intention to adopt [the child], and if it is
determined that she will not be so proceeding, the court of common pleas
shall dismiss this matter as moot pursuant to 23 Pa.C.S.A. § 2512.” L.J.B.,
18 A.3d at 1113.
In the case at bar, we initially remanded so the parties could address
whether Mother’s termination petitions were cognizable. Mother averred that
her fiancé – as opposed to her spouse – intended to adoption the Children, in
apparent contravention of 23 Pa.C.S.A. § 2903; moreover, Mother did not aver
that she had good cause, under 23 Pa.C.S.A. § 2901, to proceed with the
terminations notwithstanding her inability to comply with legal requirements
of the Adoption Act.3 In light of the letter submitted by Mother’s counsel, we
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3Section 2903 states, verbatim: “Whenever a parent consents to the
adoption of his child by his spouse, the parent-child relationship between
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do not reach this issue. Instead, we must vacate the termination orders and
remand for an evidentiary hearing. On remand, the orphans’ court shall
determine the actual status of the relationship between Mother and T.B. and
whether T.B. still intends to adopt. As in L.J.B., supra, if it is determined
that either Mother and T.B. are no longer in a relationship, or that T.B. no
longer intends to adopt, the orphans’ court shall dismiss this matter as moot
pursuant to 23 Pa.C.S.A. § 2512.
Orders vacated. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2020
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him and his child shall remain whether or not he is one of the petitioners in
the adoption proceeding.” 23 Pa.C.S.A. § 2903.
Section 2901 states, verbatim: “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, the investigation
required by section 2535 (relating to investigation) has been completed, the
report of the intermediary has been filed pursuant to section 2533 (relating to
report of intermediary) and all other legal requirements have been met. If all
legal requirements have been met, the court may enter a decree of adoption
at any time." 23 Pa.C.S.A. § 2901.
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