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In the Matter of the Involuntary

December 11, 2012

IN THE MATTER OF THE INVOLUNTARY TERMINATION OF PARENTAL RIGHTS TO E.M.I., A MINOR CHILD APPEAL OF: L.J.I.


Appeal from the Order Entered April 20, 2012 In the Court of Common Pleas of Clarion County Orphans' Court at No(s): 1 OC 2012

The opinion of the court was delivered by: Gantman, J.

BEFORE: GANTMAN, J., WECHT, J., and FITZGERALD, J.*fn1

Appellant, L.J.I. ("Mother"), appeals from the order entered in the Clarion County Court of Common Pleas, which denied her petition for involuntary termination of the parental rights of D.J.C. ("Father") to E.M.I. ("Child"). Mother asks us to determine if the court erred when it denied Mother's termination petition because she failed to demonstrate a "contemplated adoption" of Child. We hold the court properly denied the petition, where Mother offered insufficient evidence that the proposed adoption of Child by Mother's domestic partner, S.S., would serve Child's best interests. Accordingly, we affirm.

The relevant facts and procedural history of this case are as follows. Father and Mother are the natural parents of Child, who was born in 2008. Mother and Father dated less than a year, were not married, and ended their relationship sometime during the pregnancy. Father is 22 years old, lives at his mother's home in Butler County, and is currently employed. Mother is a full time university student and about the same age as Father. When Child was born, Mother resided in her father's home in Karns City, but she moved in August 2009, after her parents divorced and her mother remarried. Mother currently lives with Child in Clarion, Clarion County, near Mother's university, in the home of Child's maternal grandmother and maternal stepgrandfather, about an hour's drive from Father.

During the first few months of Child's life, Father saw Child weekly at maternal grandfather's home in Karns City. The visits gradually became less frequent as the year progressed, with Father's appearances dwindling to monthly visits of an hour or two. When Mother moved with Child to Clarion in August 2009, Father's relationship with Child diminished even more significantly. Mother and Father communicated primarily through text messages to set up informal visits when Mother and Child stayed at maternal grandfather's home in Karns City. Father saw Child on rare occasions, but generally the visits just fell through.

Father has not paid child support, and his employment history is sporadic. He gave Child gifts at Christmas, but the parties dispute who actually paid for the gifts. There is almost no dispute, however, that Father has had limited contact with Child since August 2009. Father has seen Child in person only "a handful of times" since the move and has had no telephone contact or written correspondence to Child. At Father's latest in-person visit, Child did not recognize him.

Mother began a relationship with S.S. in 2009. They parted for two or three months around December 2010, subsequently reconciled, and have been in a continuous relationship since then. Mother attributed their split to maturity issues but insists it was temporary and any problems have been resolved.

Mother and S.S. now live together in maternal grandmother's and maternal step-grandfather's home. S.S.'s move-in was gradual. S.S. began staying at the home some nights, then more often, and eventually moved most of her belongings into the home. Five persons total live in the household--maternal grandmother, maternal step-grandfather, Mother, Child, and S.S. It is not clear who financially supports Child. Mother has worked at summer jobs and saved money, while S.S.'s plans are to enlist in the military. According to the record, there has been no discussion on who intends to pay for adoption proceedings.

Child is four years old and well-adjusted by all accounts, enrolled in school, and involved in various activities. S.S. contributes to the care of Child by performing duties such as bathing, dressing, and feeding. S.S. also picks Child up from school when either Mother or maternal grandmother is unavailable. According to Mother, Child and S.S. have a close relationship, tell each other "I love you," and generally express mutual affection. Most portions of the record describe S.S.'s relationship with Child as "friend-like"; other portions suggest S.S. acts as a secondary parent.

In December 2011, Mother and S.S. traveled to New York, where they married in a civil ceremony.*fn2 Mother and S.S. wed for several stated reasons, not only to express their love and commitment to each other but also to formalize their relationship before S.S. left for military training.*fn3 Mother claims Child knows Mother and S.S. are "married."

On December 2, 2011, Mother filed a petition for involuntary termination of Father's parental rights. In the petition, Mother stated Father had no relationship with Child. Additionally, Mother averred S.S. planned to adopt Child. The court held two hearings on Mother's petition in February and March 2012, respectively. Mother, Father, maternal grandmother, maternal grandfather, and paternal grandmother testified. There was extensive evidence from Mother and her parents about Father's lack of contact with Child and his excuses for failing to maintain a relationship. In response, Father stated Mother excluded him from Child by placing obstacles to his visitations. Father claimed he made best efforts to see Child but could not break through Mother's various time constraints and other barriers.

Evidence of S.S.'s intent to adopt Child was very limited and dealt primarily with Mother's and Child's relationship with S.S. Although present during Mother's case, S.S. did not testify. Other than Mother's averment in the termination petition regarding S.S.'s intent to adopt Child, S.S. offered no direct evidence about her goal to adopt Child or how that was likely to occur.

After the hearings concluded, the court issued a written decision on April 20, 2012, denying Mother's termination petition. The court first found Father had no meaningful relationship with Child, and Father's inaction demonstrated a settled purpose to relinquish his parental rights to Child. The court also stated Child was well cared-for in her current living situation. Considering Father's significant absence from Child's life, the court concluded termination of Father's parental rights would not negatively affect Child's general welfare.

The court next examined whether, given the evidence presented, the proposed adoption of Child was likely to occur. The court acknowledged the relationship of S.S. with Mother and Child but found Mother had failed to demonstrate the strength of S.S.'s potential adoption of Child. Given that the adoption of Child was a necessary prerequisite to the success of Mother's termination petition, the court denied the petition. Mother timely filed a notice of appeal on May 17, 2012. The court ordered a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925. Mother timely complied.

Mother now raises three issues for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING [MOTHER'S] PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS OF THE BIOLOGICAL FATHER AFTER DETERMINING THAT TERMINATION OF FATHER'S RIGHTS WILL NOT NEGATIVELY AFFECT THE GENERAL WELFARE AND NEEDS OF THE SUBJECT MINOR CHILD?

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED AN ERROR OF LAW BY DETERMINING THAT THE ANTICIPATED ADOPTION OF [CHILD] BY [S.S.] IS NOT LEGALLY PERMISSIBLE UNDER PENNSYLVANIA'S ADOPTION ACT?

WHETHER THE TRIAL COURT'S DETERMINATION, THAT [MOTHER] FAILED TO SUSTAIN HER BURDEN TO PROVE "GOOD CAUSE" UNDER SECTION 2901 OF THE ADOPTION ACT TO PROCEED WITH THE ANTICIPATED ADOPTION OF [CHILD] BY [S.S.], WAS CONTRARY TO AND UNSUPPORTED BY THE ...


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