Adoption: “cause shown” exception where non-spouse seeks to adopt and parent who is girlfriend of non-spouse seeks to retain her parental rights 

In Re: Adoption of: M.E.L., 2022 WL 4113115 (Pa. Super.) (unpublished), allocatur granted Nov. 21, 2022, appeal docket 109 MAP 2022

M.E.L. was born in 2016 and her parents divorced in 2018. Although the parents originally had shared custody, Father gave sole legal and physical custody of M.E.L. to Mother in 2019. In 2021, Mother and Mother’s Boyfriend petitioned to terminate Father’s parental rights but retain Mother’s parental rights so that Boyfriend could adopt M.E.L. Father failed to appear at the hearing, and evidence at the hearing showed that Father had not seen M.E.L. since 2019, that M.E.L. did not know Father, that Boyfriend had a positive relationship with M.E.L., and that M.E.L. referred to Boyfriend as “Daddy.” The orphans’ court terminated Father’s parental rights and Father appealed.

Superior Court found that although Mother established grounds to terminate Father’s parental rights, she failed to show cause why she should retain her own parental rights; accordingly, Superior Court remanded to the orphans’ court to determine whether just cause exists for Mother to retain her parental rights. Superior Court explained the law as follows:

The sole purpose of the involuntary termination of parental rights is to facilitate adoption…. Adoption is a statutory right; because a termination petition filed by one parent against the other must occur in the context of an anticipated adoption, the parent seeking termination must strictly comply with all pertinent provisions of the Adoption Act in order for the adoption to be valid. … Section 2512 of the Adoption Act designates who may file an involuntary termination petition, as well as the required contents of such a petition. … Typically, the Adoption Act requires both parents to relinquish their parental rights, either voluntarily or involuntarily. See generally 23 Pa.C.S.A. §§ 2501-2521, 2711. The purpose of the relinquishment requirement is to sever the legal ties between the child and the natural parents, thereby allowing the child to be adopted into a new family unit. … There are two exceptions that allow a parent to retain parental rights, while allowing the child to be adopted. The first is the spousal exception under 23 Pa.C.S.A. § 2903, which permits a parent to consent to the adoption by a spouse (i.e., the stepparent) while keeping intact their own legal relationship with the child…. Our courts have recognized a second exception under 23 Pa.C.S.A. § 2901, which gives the trial court discretion to grant an adoption in limited circumstances where the party cannot meet the statutory requirements but has demonstrated cause for the noncompliance…. This second exception under Section 2901 is known as the “cause shown” exception. If neither of these exceptions applies, then the proposed adoption – averred by the petitioner-parent under Section 2512(b) – is invalid…. And if the proposed adoption is invalid, then the termination petition is not cognizable, and any subsequent termination order cannot stand….

Here, because Mother is a parent, her termination petition had to include an averment that another individual intended to adopt the Child. See 23 Pa. C.S.A. § 2512(b). Additionally, because Mother sought to retain her parental rights while terminating Father’s rights, she had to meet either the spousal exception under Section 2903 or the “cause shown” exception under Section 2901.

Slip op. at 5-8.

The Supreme Court has granted allocatur.  The issue, as stated by Petitioner, is:

Whether the Superior Court erred as a matter of law and/or abused its discretion in remanding this matter to the trial court to evaluate whether Mother could establish the “cause” exception of 23 Pa.C.S. § 2901 where the child is proposed to be adopted by a non-spouse?


For more information, contact Kevin McKeon or Dennis Whitaker.