J-S40015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

IN RE: ADOPTION OF: X.P.D. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

APPEAL OF: K.K., NATURAL MOTHER : No. 128 WDA 2015

Appeal from the Order entered December 22, 2014,

Court of Common Pleas, Butler County,

Orphans’ Court at No. OA No. 2011-00035a

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

CONCURRING MEMORANDUM BY DONOHUE, J.: FILED AUGUST 26, 2015

I agree with the learned Majority’s conclusion that the orphans’ court 

did not err or abuse its discretion by terminating Mother’s parental rights to 

Child. In my view, however, the Majority’s decision is incomplete, as it fails 

to address Stepmother’s intention to adopt Child. My reasoning follows.

“A petition to terminate a natural parent’s parental rights, filed by one 

natural parent against the other under Section 2512(a)(1), is cognizable 

only if an adoption of the child is foreseeable.” In re E.M.I., 57 A.3d 1278, 

1285 (Pa. Super. 2012) (emphasis added); see also In re B.E., 377 A.2d 

153, 154-55 (Pa. 1977) (“[T]he Adoption Act provides for termination of 

parental rights only in connection with a plan for adoption ... [T]he 

Legislature intended the petition for involuntary termination of parental 

rights to be available solely as an aid to adoption.”) (footnote omitted). Our 

Supreme Court has held that orphans’ courts “should consider, and not 

merely accept on its face,” a stepparent’s statement that he or she intends 
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to adopt the spouse’s child upon termination of the other parent’s rights. In 

re Adoption of L.J.B., 18 A.3d 1098, 1108 (Pa. 2011) (quoting In re T.R., 

465 A.2d 642, 644 n.10 (Pa. 1983)). This is necessary to ensure “that the 

issue of whether they genuinely seek termination solely as an aid to 

adoption to thereby establish a new parent-child relationship, the singular 

concern of the Adoption Act, [is] properly [] determined.” Id. 

Although Mother did not raise a claim on appeal questioning 

Stepmother’s intention to adopt Child, a genuine intent to adopt Child is a 

prerequisite to permitting the termination of parental rights. See In re 

Adoption of J.D.S., 763 A.2d 867, 870-71 (Pa. Super. 2000). In J.D.S., 

the child’s stepfather filed a petition to involuntarily terminate the biological 

father’s parental rights, concomitantly stating his intention to adopt the child 

upon termination. Id. at 868. The mother filed notice of her consent to the 

stepfather’s proposed adoption. Id. The orphans’ court granted the petition 

to terminate the father’s parental rights. On appeal, counsel for the 

stepfather and mother sought to withdraw as appellate counsel based upon 

the mother and stepfather’s separation and the belief “that divorce was 

imminent.” Id. at 869. We remanded the case to the orphans’ court to 

determine whether the stepfather still intended to adopt the child in light of 

his marital problems with the child’s mother. Id. At the remand 

proceeding, the stepfather testified: “Sometimes there is a lot of anger in 

separation situations, what anger brings out. I don't know what the future 
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holds. Maybe we will reconcile. Maybe we won’t. There’s not a definite 

answer.” Id. (record citation omitted).

Upon return of the case to this Court for decision, we concluded as 

follows:

[W]e find the evidence does not satisfy the 

burden of proof applicable in parental termination 

cases involving a stepparent adoption. While the 

evidence could establish that father’s conduct, or 

lack thereof, indicates “a settled purpose of 

relinquishing parental claim to a child or has refused 

or failed to perform parental duties”, 23 Pa.C.S.A. § 

2511(a)(1), this evidence becomes applicable only if 

the procedural status of the case is such that 

termination is permissible.

The Adoption Act provides:

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. If all legal 

requirements have been met, the court may enter 

a decree of adoption at any time.

23 Pa.C.S.A. § 2901, Time of entry of decree of 

adoption (emphasis added). The judicial discretion 

provided by this section cannot be exercised unless 

and until the statutory requirements leading up to 

the adoption have been met and, until that time, the 

best interest and general welfare of the child cannot 

be considered. In Interest of Coast, [] 561 A.2d 

762 ([Pa. Super.] 1989), appeal denied, [] 575 A.2d 

560 ([Pa.] 1990).

Termination of the natural parent’s rights prior to 

adoption and allowance of stepparent adoption is for 

the purposes of protecting the integrity and stability 

of the new family unit. Because the primary function 

of government and law is to preserve and perpetuate 
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society, the traditional family structure is given every 

reasonable presumption in its favor. This 

comprehends an intact and subsisting family 

including a stepparent.

* * *

No gain to the child or society is achieved by 

permitting the termination of the natural father’s 

parental rights in order to permit adoption by a 

stepfather who no longer resides with the child’s 

mother. The policy consideration for permitting a 

stepparent adoption is defeated by the separation 

and contemplation of divorce. Under the facts of this 

case, as evidenced by the testimony on the record, 

we find the petitioner has not met his burden of 

establishing the statutory prerequisite for 

termination of father’s rights.

Without implementation of section 2701, Consent 

to adopt, which must be read in pari materia with 

section 2511(a)(1), we conclude termination of 

father’s parental rights was improper. 

Id. at 870-72 (emphasis supplied).

Although the Majority briefly mentions that Stepmother filed notice of 

her intention to adopt Child upon the orphans’ court granting Father’s 

petition to terminate Mother’s parental rights,1it does not discuss the 

 

1

 I note that although Stepmother filed a formal report of her intention to 

adopt Child, the Adoption Act did not require her to do so. See 23 Pa.C.S.A. 

§ 2531(c) (“No report [of intention to adopt] shall be required when the 

child is the ... stepchild ... of the person receiving or retaining custody or 

physical care.”). The Adoption Act did require Father in his petition to 

involuntary terminate Mother’s parental rights to Child to “aver that an 

adoption is presently contemplated [and] that a person with a present 

intention to adopt exists,” and the record reflects that he complied with this 

requirement. See 23 Pa.C.S.A. § 2512(b); In re E.M.I., 57 A.3d 1278, 
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orphans’ court’s consideration of whether Stepmother in fact intended to 

adopt Child. My review of the record reveals that the orphans’ court did not 

make a finding specific to Stepmother’s intention regarding her adoption of 

Child. The orphans’ court did find, however, that “Stepmother and Child 

have a [m]other-child relationship and that Stepmother has provided the 

primary parenting needs of Child since Father’s and Stepmother’s date of 

marriage [in 2009].” Orphans’ Court Opinion, 3/5/15, at 18. Furthermore, 

the record reflects that in addition to Father averring in his termination 

petition that Stepmother intended to adopt and Stepmother filing a report of 

her intention to adopt, Stepmother testified at the termination hearing 

regarding her continued intention to adopt Child if the orphans’ court 

terminated Mother’s parental rights. N.T., 7/8/14, at 15. This Court has 

found that a stepmother’s participation in the termination hearing satisfied 

the requirement that she intended to adopt the child. In re Adoption of 

J.F., 572 A.2d 223, 225 (Pa. Super. 1990). As such, I agree with the 

Majority that the orphans’ court properly granted Father’s petition to 

terminate Mother’s parental rights to Child.

 

1285 (Pa. Super. 2012); see also Petition for Involuntary Termination of 

Parental Rights, 6/20/13, ¶ 12.