By: Lawrence J. Persick
Printed in the Legal Intelligencer – July 12, 2016
Every family law practitioner has been there. The players are a little different each time but the roles are always the same. Usually it is a young mother complaining about a “dead beat dad” who is hardly in the picture. Sometimes it is a concerned grandparent who has been listening to the parent’s heartache for far too long. Or it is a young father complaining about a mother with a mental health history who has walked out for the last time and left him to care for a young child alone.
In all of these cases you have a parent who is raising a child alone; there is minimal or no contact with the other parent and the contact that does happen is strained. There are mounting support arrearages and no type of partial custody, just a lot of empty promises. The question for the attorney at the initial consultation is always the same, “Can’t I just get rid of him?” Hopefully the person sitting across from you is talking about termination of parental rights and not something that involves the Crimes Code.
So what can you do for this young parent? The traditional answer was always, “Sorry, but unless you have someone willing to fill the shoes of the terminated parent, you’re stuck with him.” While that is still the case, two recent decisions of the Superior Court have expanded the definition of who that someone can be and gives families more leverage in dealing with the completely disengaged parent.
Under the Pennsylvania Adoption Act for a non-governmental party to petition to terminate parental rights someone has to also file a petition for adoption. That is still the case, however, who may file that petition is now much broader.
In Re: Adoption of MRD, 128 A.3d 1249 (Pa. Super. December 8, 2015), arises out of an appeal filed by a father challenging the termination of his parental rights. The petitioners in that case were the two children’s mother and maternal grandfather. The proposed adopting party was the maternal grandfather. The facts follow an all too familiar pattern: mother and father were never married, their two children were born in Pennsylvania. The family moved from Pennsylvania to South Dakota and after some ups and downs the mother and children moved back to Pennsylvania while the father stayed in South Dakota. Over time the father had less and less contact with his children and the mother to the point where the children did not even know who their father was. As the father’s involvement in the children’s lives waned, the maternal grandfather filled the void, providing for them economically and psychologically. He attended doctors’ appointments, school conferences, taught them how to throw a football, he did all of the things fathers usually do.
The trial court terminated the father’s parental rights and allowed the maternal grandfather to proceed with an adoption of the two children. The father appealed raising, among other things, that since the maternal grandfather did not physically live with the mother and the two children, the proposed adoption would not create a new family unit, was not in the children’s best interests and, therefore, in contradiction of Section 2511(b) of the Adoption Act. 23 Pa.C.S.A. §2511(b).
In his brief and argument the father repeatedly focused on the fact that the mother and maternal grandfather did not and had no intention of living in the same house to raise the children. The father relied on language in two earlier cases, In Re Adoption of LJB, 18 A.3d 1098 (Pa. 2011); and In Re Adoption of JDS, 763 A.2d 867 (Pa. Super. 2000). Although there is language in those cases about an “intact family unit,” both of them deal with terminations of parental rights and proposed adoptions where the proposed adopting parent separated or divorced a biological parent during the course of the process.
Not only did the Superior Court distinguish the father’s two cases, but in affirming the Superior Court drew heavily from an earlier case from that court, In Re Adoption of JM, 991 A.2d 321 (Pa. Super. 2010). In that case the trial court denied the mother’s petition to terminate the father’s parental rights in favor of an adoption by the maternal grandfather. The issue in JM was the same as in MRD, that being that the proposed adoption would not create a new traditional nuclear family in that the maternal grandfather would continue to reside in his own house.
The Superior Court reversed the trial court in JM relying on the same sex adoption case, In Re Adoption of RBF, 803 A.2d 1195 (Pa. 2002); where certain specific requirements of the Adoption Act need not be met upon “cause shown”. See 23 Pa.C.S.A. §2901. In JM the Superior Court applied the same rules applicable to unmarried same-sex partners to grandparents and found that there was no reason why a grandparent could not proceed with an adoption provided the record established good cause shown.
Where JM stops and MRD picks up is in finding “cause shown”. In JM the Superior Court remanded the matter back to the trial court to find out if there were facts sufficient to allow the maternal grandfather to proceed with an adoption. In essence, Superior Court found that the possibility existed but never specifically put its stamp of approval on a proposed adoption where a grandfather, living in a separate household, was the proposed adopting parent.
In MRD the Superior Court takes the process to the final step and does, in fact, find that the record was properly developed, that good cause was shown and that the maternal grandfather could adopt his two grandchildren.
An obvious follow-up question is where does the maternal grandmother fit into this rubric of a 21st Century family? In neither MRD nor JM is there mention of a maternal grandmother, however, in JM there is mention of the maternal grandfather’s wife watching the child while the maternal grandfather is working. It does not appear that the maternal grandfather’s wife is the maternal grandmother, however, the fact that the natural grandfather was married and his wife was not an adopting party appears to make no difference to Superior Court. Also, there does not appear to be a limit on this concept to grandfathers. There is no reason why the process in JM and MRD could not apply to any family member, be they a grandmother, aunt, uncle, or even a non-family member with a special relationship to the children.
As an epilogue, where does this leave the family law practitioner when a young parent wants to get rid of an essentially non-existent parent? Based on JM and the more recent MRD cases it appears that a proposed adopting parent is still necessary to proceed with a termination of parental rights, however, that proposed adopting parent can be a family member who lives outside the child’s home. The practitioner just needs to follow the road map in the cases cited herein and make a clear record as to why the proposed adoption is in the child’s best interest and if there needs to be a deviation from the requirements of the Adoption Act, that deviation is based on good cause shown.
Lawrence (Skip) Persick is a partner at Lamb McErlane PC. He represents clients involved in divorces, custody disputes, child support matters and adoptions. His experience also includes cases dealing with juvenile dependency and the termination of parental rights. He can be contacted at firstname.lastname@example.org or 610-430-8000.
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