Opinion
519 MDA 2021 J-E02001-22
01-19-2023
IN RE: ADOPTION OF: A.M.W., A MINOR APPEAL OF: M.J.G.
Joseph D. Seletyn, Esq.
Appeal from the Decree Entered March 31, 2021 In the Court of Common Pleas of Bradford County Orphans' Court at 18 ADOPT 2020
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.
OPINION
MURRAY, J.:
M.J.G. (Former Stepfather) appeals from the decree dismissing his petition to adopt A.M.W. (Child) and granting the adoption petition filed by E.B. (Current Stepfather), joined by A.G. (Mother). After careful review, and consideration of our Supreme Court's recent decision in In the Interest of K.N.L., --- A.3d ---, 2022 WL 10719028 (Pa. Oct. 19, 2022), we vacate and remand for the trial court to reconsider Former Stepfather's standing, appoint counsel for Child, and for further proceedings consistent with this decision.
Generally, when a party seeks to appeal from two separate decisions entered on the same docket, the party must file two separate notices of appeal. Dong Yuan Chen v. Saidi, 100 A.3d 587, 589 n.1 (Pa. Super. 2014). Here, Former Stepfather filed one notice of appeal indicating he was appealing from two decrees entered the same day. Appellees Current Stepfather and Mother did not object, and the appeal period has expired. Therefore, we decline to quash the appeal. See Gen. Elec. Credit Corp. v. Aetna Cas. & Sur. Co., 263 A.2d 448, 453 (Pa. 1970).
Child was born in December 2009. Child's biological father is not and has not been part of Child's life. Mother and Former Stepfather were in a relationship during Mother's pregnancy with Child and later married. They divorced in January 2017. Mother and Current Stepfather married in May 2019. In February 2021, the parties filed competing petitions to adopt Child. Former Stepfather summarized his relationship with Child as follows:
I was in a monogamous relationship with [Mother] at the time of [Child]'s birth until our marriage. I was stepfather until [Mother] and I divorced on January 6, 2017. During that time, I helped teach [Child] to walk and to talk and I was her only father figure until [Current Stepfather] came into the picture. Her biological father was not involved whatsoever. [Child] has always called me "dad", "daddy", or words to that effect. I financially supported [Child] both before and after my divorce from [Mother] and I have provided health and dental insurance for most of her life, including at present. [Mother] publicly [sic] held me out as [Child]'s father. Prior to and even after our divorce, we discussed adoption and [Mother] gave me her consent to adopt[.]Former Stepfather's Brief in Support of Adoption Petition, 3/11/21, Exhibit G.
In 2016, Former Stepfather and Mother executed a Post-Nuptial Agreement which included provisions regarding custody and child support of Child (as well as their biological child born during their marriage). Id. at Exhibit C, ¶¶ 4-5. The Post-Nuptial Agreement states: "The parties shall share legal custody of [the children]. … The parties agree [Former Stepfather] shall have shared physical custody of the children when [Former Stepfather] returns from Italy." Id. at Exhibit C, ¶ 4. Former Stepfather exercised custody of pursuant to the terms of the Post-Nuptial Agreement and maintained regular contact with Child through video calls. Id. at Exhibit G. In June 2020, he filed a petition seeking partial physical custody of Child. Id.
Former Stepfather is in the United States Air Force and was on active duty in Italy at the time.
The status of the petition is unclear from the record.
On June 2, 2020, Mother and Current Stepfather filed a petition to terminate the parental rights of Child's biological father. The trial court appointed counsel to represent Child in the termination proceedings. On December 14, 2020, the court granted the petition and terminated the parental rights of biological father.
In February 2021, Former Stepfather and Current Stepfather (joined by Mother), filed competing petitions to adopt Child. By opinion and decree entered March 31, 2021, the trial court dismissed Former Stepfather's petition. The trial court reasoned:
In this case, [Mother]'s rights are intact. She is remarried and her husband, [Current Stepfather,] wishes to adopt[,] and [Mother] has consented to such. Given these facts, the court cannot … find that consent of the surviving natural mother is not required and bestow an ex-husband/stepfather the right to proceed in an adoption, even though he may have "in loco parentis" status.Trial Court Opinion, 3/31/21, at 3-4 (emphasis and footnote added). That same day, the trial court held an adoption hearing and granted Current Stepfather's petition to adopt. This timely appeal followed.
A person stands in loco parentis with respect to a child when he or she "assum[es] the obligations incident to the parental relationship without going through the formality of a legal adoption." K.X. v. S.L., 157 A.3d 498, 505 (Pa. Super. 2017) (citations omitted).
Former Stepfather and the trial court have complied with Pa.R.A.P. 1925.
In a memorandum filed February 14, 2022, a divided panel of this Court affirmed. On February 22, 2022, Former Stepfather filed an application for reargument en banc. On March 30, 2022, this Court granted Former Stepfather's application for reargument and withdrew the original memorandum. Pursuant to Pa.R.A.P. 2140, Former Stepfather filed a supplemental brief expanding on the issue of Child's right to counsel and raising two new issues. Mother and Current Stepfather filed a reply brief. The case was argued before this Court en banc on September 14, 2022.
Former Stepfather raises seven issues in his original brief, and two additional issues in his supplemental brief. Our review of the following three issues is dispositive:
[1.] Whether the trial court erred and abused its discretion in dismissing Appellant's petition for adoption on the basis that Appellant lacked standing[?]
[2.] Whether the trial court erred in failing to rule on Appellant's [p]etition to [i]ntervene?
[3.] Whether the trial court abused its discretion in failing to appoint legal counsel and/or [a] guardian ad litem [GAL] for the
[now twelve-year]-old [C]hild upon receiving two competing adoption petitions? Former Stepfather's Original Brief at 4 (reordered).
We review Former Stepfather's issues in the context of the Pennsylvania Adoption Act, 23 Pa.C.S.A. § 2101, et seq. The Pennsylvania Supreme Court has pronounced:
[A]doption is purely a statutory right, unknown at common law. In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10, 11 (1979). To effect an adoption, the legislative provisions of the Adoption Act must be strictly complied with. [Id.] Thus, our analysis is focused entirely on the relevant statutory provisions.
The Adoption Act provides that "[a]ny individual may be adopted, regardless of his age or residence." 23 Pa.C.S. § 2311.
Similarly, "[a]ny individual may become an adopting parent." [Id.] § 2312. Section 2701 sets forth the requisite contents of a petition for adoption filed by a prospective adoptive parent[.]In re Adoption of R.B.F., 803 A.2d 1195, 1199 (Pa. 2002).
A petition for adoption shall set forth:
…
(7) That all consents required by [S]ection 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which such consents are not required.23 Pa.C.S.A. § 2701(7).
With respect to consent,
(a) General rule.-- Except as otherwise provided in this part, consent to an adoption shall be required of the following:
(1) The adoptee, if over 12 years of age.
(2) The spouse of the adopting parent, unless they join in the adoption petition.
(3) The parents or surviving parent of an adoptee who has not reached the age of 18 years.
(b) Husband of natural mother.-- The consent of the husband of the mother shall not be necessary if, after notice to the husband, it is proved to the satisfaction of the court by evidence, including testimony of the natural mother, that the husband of the natural mother is not the natural father of the child. Absent such proof, the consent of a former husband of the natural mother shall be required if he was the husband of the natural mother at any time within one year prior to the birth of the adoptee.23 Pa.C.S.A. § 2711(a)(1-3) and (b).
The Adoption Act further addresses appointment of counsel:
(a) Child.-- The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.23 Pa.C.S.A. § 2313(a) (emphasis added).
We recognize "the interpretation and application of a statute is a question of law that compels plenary review to determine whether the court committed an error of law." Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005). "As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary." In re Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (en banc).
We review an adoption determination for an abuse of discretion. In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016). This Court will not find an abuse of discretion "merely because a reviewing court would have reached a different conclusion." Id. (citation omitted). Rather, "[a]ppellate courts will find a trial court abuses its discretion if, in reaching a conclusion, it overrides or misapplies the law, or the record shows that the trial court's judgment was either manifestly unreasonable or the product of partiality, prejudice, bias or ill will." Id. (citation omitted).
Moreover,
[i]n both custody and adoption matters, our paramount concern is the best interests of the child. This "best interests" determination is made on a case-by-case basis, and requires the weighing of all factors[,] which bear upon a child's physical, intellectual, moral, and spiritual well-being.In re Adoption of A.S.H., 674 A.2d 698, 700 (Pa. Super. 1996) (citations omitted). See also 23 Pa.C.S.A. § 2902(a).
In his first issue, Former Stepfather maintains the trial court erred and abused its discretion in dismissing "[Former Stepfather's] petition for adoption on the basis that [he] lacked standing." Former Stepfather's Original Brief at 12. He also raises related arguments that the trial court erred in failing to rule on his petition to intervene in Current Stepfather's adoption case and in granting Current Stepfather's petition to adopt. Id. at 31. Former Stepfather contends he has standing to intervene and adopt because he "stands in loco parentis to [Child]." Id. at 13; see also id. at 32. Former Stepfather argues our decision in In the Interest of N.S., 845 A.2d 884 (Pa. Super. 2004) supports his position. Id. He states:
[Former Stepfather] was [C]hild's stepfather, raised [C]hild, and financially supported [C]hild. Following the divorce of [Former Stepfather] and [M]other in January 2017, and with [M]other's agreement, [Former Stepfather] continued to share legal and physical custody rights of [C]hild[.] … It is undisputed that [Former Stepfather] stood in loco parentis to [Child] since birth and continued to stand in loco parentis at the time of the trial court's decision[.]Id. at 14.
Former Stepfather also contends the trial court abused its discretion "in finding [he] could not proceed to a hearing on the merits without the express consent of mother, the existing legal parent." Id. at 15. See also id. at 15-24. Lastly, he maintains that because he stands in loco parentis, Current Stepfather "lacked standing to proceed with his petition absent [Former Stepfather's] consent." Id. at 24.
The trial court explained its disagreement as follows:
If the facts argued by [Former Stepfather] were found to be true and for the purposes of this matter, they are considered so, he has established that he stands in loco parentis to [Child]. A person who acts in loco parentis:
… puts himself into the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of in loco parentis embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.In re: Wims[, 685 A.2d 1034, 1036 (Pa. Super. 1996] (citations omitted). This will certainly be beneficial to [Former Stepfather] in his custody matter.
In this case, the [Mother's] rights are intact. She is remarried and her husband, [Current Stepfather,] wishes to adopt and [Mother] has consented to such. Given these facts, this Court cannot
expand In re Adoption J.E.F.[, 902 A.2d 402 (Pa. 2006)] and find that consent of the surviving natural mother is not required and bestow an ex-husband/step-father the right to proceed in an adoption, even though he may have "in loco parentis" status.Trial Court Opinion, 3/29/21, at 3-4. We are constrained to disagree.
On October 19, 2022, the Pennsylvania Supreme Court decided In re KNL, __ A.3d __, 2022 WL 10719028 (Pa. Oct. 19, 2022). The Supreme Court "granted discretionary review to examine whether the lower courts applied appropriate standards for evaluating, and rejecting, a former caregiver's asserted in loco parentis status for purposes of standing to intervene in a proceeding to adopt a child in the custody of a foster care agency, pursuant to the Adoption Act." Id. at *1. Ultimately, the Supreme Court determined the trial court had misapplied the law, and the "proper standing inquiry reviews whether a non-foster-parent third party seeking to pursue a petition to adopt a child in the custody of an agency has a genuine and substantial interest in formalizing a permanent parental relationship with the adoptee-child, which surpasses the interest of ordinary, unrelated strangers." Id. at *18.
Although KNL was decided after Appellant filed this appeal, it is well settled that "Pennsylvania appellate courts apply the law in effect at the time of the appellate decision. This means that we adhere to the principle that a party whose case is pending on direct appeal is entitled to the benefit of changes in law which occur before the judgment becomes final." Commonwealth v. Chesney, 196 A.3d 253, 257 (Pa. Super. 2018) (citations omitted).
This case is distinguishable insofar as there is no agency involved. The trial court found that because Mother's parental rights are intact and she consented to Current Stepfather's adoption of Child, her consent was required to confer Former Stepfather with the right to intervene. The trial court did not address "whether a non-foster-parent third party seeking to pursue a petition to adopt a child ... has a genuine and substantial interest in formalizing a permanent parental relationship with the adoptee-child ...." Id.
The Pennsylvania Supreme Court observed:
Standing relates to the capacity of an individual to pursue a particular legal action, and requires the petitioning litigant be adversely affected, or aggrieved, in some way. Traditionally, this requirement is met where an individual demonstrates he or she has a substantial interest in the subject matter of the litigation that must be direct and immediate, rather than remote, and which distinguishes his interest from the common interest of other citizens. In Pennsylvania, the doctrine of standing is a judicially-created tool intended to winnow out litigants with no direct interest in the matter, and to otherwise protect against improper parties. Consequently, where the General Assembly expressly prescribes the parties who may pursue a particular course of action in Pennsylvania courts, legislative enactments may further enlarge or distill these judicially-applied principles. Standing is a threshold issue and must be resolved before proceeding to the merits of the underlying action. As is the case in custody matters, standing within an adoption proceeding is a conceptually distinct legal question from the central, substantive issue of the child's best interests.K.N.L., 2022 WL 10719028, at *8 (citations omitted).
In addition:
Issues of standing generally raise pure questions of law for which we employ de novo review of a trial court's decision. As well, a challenge to asserted in loco parentis status in a particular context typically involves a fact-intensive inquiry and may implicate mixed
questions of law and fact. Where factual findings and credibility determinations are at issue, we will accept them insofar as they are supported by the record. In matters arising under the Adoption Act, as well as appeals of child custody and dependency decisions, our plenary scope of review is of the broadest type; that is, an appellate court is not bound by the trial court's inferences drawn from its findings of fact and is compelled to perform a comprehensive review of the record for assurance the findings and credibility determinations are competently supported.Id. at *5.
In K.N.L., the child was in the custody of the Philadelphia Department of Human Services (DHS), and the parental rights of the child's biological parents were terminated, as were the custodial and visitation rights of the child's former caregiver. Id. at *1. When the child's foster parents sought to adopt the child, the biological aunt intervened, and the foster parents withdrew their adoption petition. Id. Thereafter, the former caregiver's son (who became the appellant), sought to intervene. Id. at *2. The appellant filed a petition to adopt the child, claiming in loco parentis status. Id. Following a hearing, the juvenile court concluded the appellant lacked standing because he was not currently assuming parental obligations of the child, and did not have the written consent of DHS, who was the child's current legal guardian. Id. at *4. This Court affirmed the juvenile court. Id. at *5. In granting allowance of appeal, the Pennsylvania Supreme Court focused on the juvenile court's denial of the appellant's petition "to intervene in the adoption of the child despite uncontroverted proof that [he] stood in loco parentis for the subject child by assuming the role of parent and discharging parental duties[.]" Id. (citation omitted).
He was also the biological mother's former "romantic partner and longtime friend." Id. at *2.
Ultimately, the Pennsylvania Supreme Court rejected the juvenile court's conclusion that the appellant's current in loco parentis status and DHS consent was necessary to establish appellant's standing. Id. at *9, *11. The High Court observed that the legal basis for the "general rule restricting standing" to individuals currently in loco parentis was "not apparent," and "decline[d] to recognize [prior Superior Court cases] as the source of any requirement that in loco parentis status must be current to establish standing." Id. at *9. With respect to the Adoption Act's consent requirements, the Court concluded that in its prior decisions, it
squarely rejected any purported relationship between the threshold issue of a party's standing, and the substantive impact of the [Adoption] Act's consent requirements. Also [the Supreme Court] rejected … that an agency's refusal of the consent to adopt … could still bar standing for everyone else. Instead, with respect to the Section 2711 consent requirements, [our Supreme] Court [had previously] unanimously declared this provision, by its plain language, never purports to speak to standing, much less does the provision suggest that the consequence of withholding consent is to eliminate standing. Instead, the [Adoption] Act contemplates the adoption court, not the agency, will perform an analysis of a conferred or withheld consent of a relevant party as part of an overall substantive evaluation of the child's best interests in the merits of proceeding on an adoption petition, and this substantive inquiry necessarily follows, but has no relation to, the preliminary inquiry into standing. We reiterate: the agency's withheld consent is not a bar to standing and has no part in that analysis; rather, it is an issue to be considered subsequently and substantively within the paramount context of the child's best
interests, her individual needs and welfare, in relation to the petition.
….
Accordingly, nothing in the [Adoption] Act precludes any party from filing a petition for adoption, nor is there anything to preclude the trial court from entertaining multiple adoption petitions and then determining the best interests of the child.Id. at *11-12 (citations and footnote omitted, emphasis in original).
After determining that the juvenile court erred in its analysis of appellant's standing, the Court concluded:
A proper standing inquiry reviews whether a non-foster-parent third party seeking to pursue a petition to adopt a child in the custody of an agency has a genuine and substantial interest in formalizing a permanent parental relationship with the adoptee-child, which surpasses the interest of ordinary, unrelated strangers.Id. at *18 (emphasis added).
We recognize the lack of agency involvement in this case. Nonetheless, we conclude that K.N.L. is applicable. In determining that Former Stepfather lacked standing, the trial court focused on the absence of Mother's consent. Trial Court Opinion, 3/31/21, at 3-4 (stating the trial court could not "find that consent of the surviving natural mother is not required and bestow an ex-husband/step-father the right to proceed in an adoption, even though he may have 'in loco parentis' status."). This was error. Accordingly, we vacate the trial court's decree holding that Former Stepfather lacked standing to intervene and granting Current Stepfather's petition to adopt.
Former Stepfather additionally claims the trial court erred by failing to appoint legal counsel and/or a guardian ad litem (GAL) for Child. See Former Stepfather's Original Brief at 35-39; Former Stepfather's Supplemental Brief at 2-11.
Prior to reaching the merits of this claim, we address whether it is properly before us. In In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020), our Supreme Court held the issue of appointment of counsel for a child in contested termination cases was not waivable and could be raised sua sponte by an appellate court. While K.M.G. addressed appointment of counsel in termination proceedings, see id. at 1223, we find its analysis instructive to the circumstances presented in this case. The Supreme Court emphasized:
[C]hildren do not have … the ability or opportunity to assert the denial of their right to counsel. Given the critical importance and permanency of termination proceedings, as well as children's inability to navigate the termination process themselves, we hold that appellate courts should engage in sua sponte review to determine if orphans' courts have appointed counsel to represent the legal interests of children in contested termination proceedings, in compliance with Subsection 2313(a).Id. at 1235. See also In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (issue of whether orphans' court erred in not appointing counsel for children is non-waivable where "[t]here was no attorney representing solely the children's legal interests who could have raised their rights in the trial court, and the children plainly could not have done so themselves."); In the Interest of D.N.G., 236 A.3d 361, 365-66 (Pa. Super. 2020) (declining to find waiver where biological mother raised challenge to effectiveness of child's counsel for first time on appeal). Consistent with the foregoing, we decline to find waiver.
Instantly, the trial court appointed counsel to represent Child in the termination proceedings involving Child's biological father, who had no relationship with Child. See Order, 10/2/20. The trial court did not appoint counsel for Child in the adoption proceedings, despite finding that during Former Stepfather and Mother's "relationship and marriage, [Former Stepfather] was [Child's] only father figure." Trial Court Opinion, 3/31/21, at 1.
In addition, Child is over the age of 12 and must consent to adoption. 23 Pa.C.S.A. § 2711(a)(1). The record reflects Child has a lifelong relationship with Former Stepfather. The record is less clear about Child's relationship with Current Stepfather. See Former Stepfather's Brief in Support of Adoption Petition, 3/11/21, at Exhibits B, E-G; Trial Court Opinion, 3/31/21, at 1-2. Former Stepfather shares legal and physical custody of Child and pays child support. Former Stepfather's Brief in Support of Adoption Petition, 3/11/21, at Exhibit C.
The trial court does not reference Child's views about adoption, or examine whether adoption is in Child's best interests. See A.S.H., 674 A.2d at 700; 23 Pa.C.S.A. § 2902(a). It is unclear whether or to what extent Child has been advised of the implications of adoption, or how adoption by Current Stepfather could impact Former Stepfather's custody. See K.N.L., 2022 WL 10719028, at *13 (observing that the rights of a person in loco parentis to custody or visitation "automatically" terminate upon adoption). Mother and Former Stepfather have a biological child, but the trial court does not discuss the implications of adoption with respect to the siblings. Also, there are financial benefits available to children with a parent in the military. See Former Stepfather's Supplemental Brief at 5. While it is unclear whether Former Stepfather's custody and child support factor in Child's eligibility for benefits, adoption by Current Stepfather would foreclose the possibility.
In K.M.G., our Supreme Court observed "the critical role of a child's attorney, zealously advocating for the legal interests of the child who otherwise would be denied a voice in the [ ] proceedings." K.M.G., 240 A.3d at 1234; see also 23 Pa.C.S.A. § 2313(a). The Supreme Court recently addressed the role of counsel for a child in termination and adoption proceedings relative to a child's preferences and best interests:
Generally, an attorney acting as a child's legal counsel must, at a minimum, attempt to ascertain the child's preference and advocate on the child's behalf. Admittedly, that inquiry may be no simple task. First, discerning a child's preference will necessarily be a fact-intensive and nuanced process, based upon an attorney's observations and interactions with the child. Moreover, minors, as a class of individuals, fall within a wide range of ages, maturity levels, and emotional capacity that all factor into a child's ability to express a preference. As a result, ascertaining a child's preferred outcome may involve various circumstance-appropriate strategies. At one end of the spectrum, an attorney may represent an older, mature child who understands precisely what a termination proceeding entails and may articulate in clear, even binary, terms his preference for the outcome of the proceedings. By contrast, an attorney may represent a very young, less mature, child, who is unable to express any
understanding of the proceedings or articulate a preference as to their outcome.
Yet, in the middle of this range may be a child who understands to some degree what is at stake in the proceedings, and who is capable of expressing some preference, but who is unable to do so in a fully informed and articulate fashion. In these instances, an attorney must make reasonable, but at the same time prudent, efforts to discern the child's desires. And[] not only age and maturity may inform the analysis. There may be circumstances surrounding a termination proceeding that hamper determining a child's clear preference.In re P.G.F., 247 A.3d 955, 966 (Pa. 2021) (footnote omitted).
This Court has emphasized not only the importance of the appointment of counsel, but that counsel be effective in advocacy, particularly when the child is near the age where their consent is required for adoption. See D.N.G., 230 A.3d at 366-68. In D.N.G., DHS sought to terminate biological mother's parental rights. Id. at 363. The then-11-year-old child informed counsel he did not wish to be adopted; counsel relayed his position to the family court but took no further action to advocate for child. Id. at 366. On appeal, this Court vacated the termination of mother's parental rights and remanded based on counsel being ineffective. Id. at 367-68. We opined:
While legal representation in this context necessarily involves talking to the child client and reporting the child's preferences to the court, it is in no way limited to those two actions. To the contrary, … [counsel] was required to advocate on behalf of D.N.G. and provide zealous client-directed representation of D.N.G.'s legal interests.
…
We agree with [m]other's assertion that [counsel's] advocacy was inadequate. It was [counsel's] principal obligation as legal counsel to ascertain D.N.G.'s legal interest and promote it.
…
Furthermore, counsel declined to present any legal argument in his client's favor.
…
Most importantly, [counsel] failed to cast the most meaningful legal argument in his arsenal, i.e., the probability that his soon-to-be-twelve-year-old client would refuse to consent to any contemplated adoption. Indeed, by terminating parental rights notwithstanding D.N.G.'s express desire not to be adopted, the family court risked transforming D.N.G. into an orphan without any true purpose.
In sum, based upon our review of the record, we conclude that [counsel's] representation did not satisfy the mandate of § 2313(a), because he neglected to advocate for his client's legal interest. … [I]t is not possible for legal counsel to zealously represent his client's legal interest merely by engaging in one discussion with the child on the eve of trial and then summarizing that conversation for the family court. Rather than simply
reporting a preference to the family court, it was [counsel's] obligation to engage in client-directed advocacy on behalf of D.N.G. with regard to the child's preferred outcome. Therefore, we hold that D.N.G. was deprived of his statutory right to counsel to advance his legal interest, a deprivation that continues in this appeal.Id. at 366-67 (citations and footnote omitted).
A scenario similar to the instant matter arose in In re: Adoption of R.A.B., 1364 EDA 2007 (Pa. Super. May 9, 2008) (unpublished memorandum). The decision is non-precedential, but instructive. In R.A.B., the mother, in agreement with her partner (R.B.), conceived a child by artificial insemination. Id. at 1-2. The relationship between mother and R.B. ended when the child was three; the mother subsequently married, and her husband sought to adopt the child. Id. at 2. R.B. successfully intervened in the proceedings, and after an 8-day trial, the orphans' court granted the husband's adoption petition. Id. R.B. appealed, and this Court vacated and remanded based on our concern that application of the Adoption Act had "eliminated" R.B.'s custodial rights. Id. at 7-9. We explained:
[A]t the time the trial judge granted the petition of R.B. to adopt [the child], there were already two persons with legally enforceable parental rights. Thus, the decision of the trial court to grant R.B.'s petition to adopt [the child] either created a situation where [the child] has three legal parents, or effectively eliminated [R.B.]'s parental rights without due consideration for the consequences. The failure to address those consequences is of particular significance to any consideration and resolution of the best interests of [the child], since, as recognized by counsel appointed to represent the interest of [the child], the experts produced by the respective parties were adamant that [R.B.]'s relationship with [the child] should be maintained.Id. at 9 (emphasis added).
Like the parties in R.A.B., Former Stepfather and Mother have a custody agreement. However, unlike the child in R.A.B., Child in this case is over the age of 12 and does not have counsel. Mindful of the "effective[] eliminat[ion of Former Stepfather's] parental rights without due consideration for the consequences," In re Adoption of R.A.B. at 9, we conclude that legal representation is warranted for the advocacy of Child's preferences and best interests. In re P.G.F., supra.
For the above reasons, we are constrained to vacate the trial court's decree dismissing Former Stepfather's petition to intervene and adoption petition and granting Current Stepfather's adoption petition. In addition to remanding for a determination of Former Stepfather's standing, we remand for appointment of counsel for Child, to "serve the critical role of a child's attorney, zealously advocating for the legal interests of the child." K.M.G., supra at 1234. We further recognize the Pennsylvania Supreme Court's holding that while one attorney may act as GAL and legal counsel, the attorney may only do so when "the child's legal interests [i.e., the child's preferred outcome] do not conflict with the attorney's view of the child's best interests." Id. at 1224. Thus, the trial court may appoint a GAL and legal counsel if it determines that Child's preferences are contrary to counsel's view of Child's best interests.
Decree vacated. Case remanded for further proceedings. Jurisdiction relinquished.
President Judge Panella, Judges McLaughlin and McCaffery join the opinion.
Judges Nichols and Sullivan concur in the result.
Judge Dubow files a concurring opinion in which President Judge Panella, Judges Nichols and Sullivan join.
Judge Kunselman files a dissenting opinion in which Judge Olson joins.
Judgment Entered.
DISSENTING OPINION
KUNSELMAN, J.
In this matter, Former Stepfather asks this Court to consider, inter alia: 1) whether the orphans' court erred when it denied his competing petition for adoption; 2) whether the orphans' court erred when it failed to rule on his petition to intervene; and 3) whether the orphans' court abused its discretion in failing to appoint legal counsel and/or a guardian ad litem for the Child. See Majority Opinion at 3-4; see also Former Stepfather's Original Brief at 4.
The Majority agrees with Former Stepfather in all three respects. Consequently, it vacates the Current Stepfather's adoption decree, as well as the order dismissing Former Stepfather's petition to intervene and adoption petition, and it remands for a new hearing and for the appointment of counsel for the Child. See Majority Opinion, at 19-20.
I respectfully dissent from my learned colleagues in the Majority on each point. Summarily, I conclude the orphans' court correctly dismissed Former Stepfather's competing adoption petition - i.e., his independent cause of action - because Mother withheld her consent. Furthermore, the orphans' court correctly denied Former Stepfather's petition to intervene - i.e., intervene in the separate litigation involving the Current Stepfather's adoption petition - because Former Stepfather was not aggrieved by Current Stepfather's petition. Finally, the orphans' court had discretion to appoint representation for the Child in an adoption proceeding but was not mandated to do so; and this Court lacks the authority to review sua sponte such a decision. Therefore, I would affirm the orphans' court's decree granting the adoption of the Child by Current Stepfather.
I only address the three issues discussed by the Majority, but I would conclude Former Stepfather's other appellate issues merit no relief.
I. Former Stepfather's Competing Adoption Petition
This action began when Mother filed a petition to terminate the parental rights of Biological Father, contemporaneously with Current Stepfather's petition to adopt the Child. Former Stepfather then filed a competing petition for adoption. Significantly, Mother only consented to the adoption petition filed by Current Stepfather. Noting Mother's lack of consent, the orphans' court dismissed Former Stepfather's competing petition.
The Majority opines that the orphans' court erred when "focused on the absence of Mother's consent" in dismissing Former Stepfather's petition. See Majority Opinion at 13. According to the Majority, the orphans' court should have conducted a hearing to determine whether Former Stepfather had standing. The Majority reaches this conclusion by relying on our Supreme Court's recent decision in Interest of K.N.L., 284 A.3d 121 (Pa. 2022).
However, the Majority relies too heavily on the similarities between the instant case and K.N.L., without analyzing the key difference between the two cases - that K.N.L. involves an agency adoption and this case involves a stepparent adoption. See Majority Opinion at 10, 13. In its misconstruction of K.N.L., the Majority conflates the question of standing to petition for adoption in an agency adoption, with the question of whether a parent's withheld consent defeats a stepparent adoption. The question of standing is not the right question to ask for a stepparent adoption. Instead, the question is whether an individual may file a competing adoption petition, over the withheld consent of the child's parent whose rights remain intact. That answer is no.
The Adoption Act provides: "Any individual may become an adopting parent." 23 Pa.C.S.A. § 2312. This provision is only the starting point in any standing analysis involving an adoption. See generally K.N.L., 284 A.3d at 139-140. "Notwithstanding this [] open-ended approach, the Act does, in other provisions, impose exacting substantive and procedural requirements regarding the official record necessary to support a decree in both private adoptions and those involving children in foster care." Id. at 139; see also 23 Pa.C.S.A. § 2701 (relating to contents of a petition for adoption).
Among those other provisions is Section 2711, which mandates that a party seeking to adopt must obtain the consent of certain individuals. See id. at 139; see also 23 Pa.C.S.A. § 2701(7). Sometimes those required consents may be excused. When the Majority overlooked the distinction between an agency adoption and a stepparent adoption, it failed to appreciate the difference between an agency's consent and a parent's consent. And it misunderstood when the orphans' court may excuse the consent requirement and when it may not.
"A petition for adoption shall set forth: (7) That all consents required by Section 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which such consents are not required." 23 Pa.C.S.A. § 2701(7).
The Adoption Act mandates that the parents of a child must consent to the child's adoption. 23 Pa.C.S.A. § 2711(a)(3). In a typical agency adoption, like K.N.L., consent of the parents is not required, because the parental rights of both parents have already been terminated. See 23 Pa.C.S.A. § 2714. Following the termination of parental rights, the agency becomes the child's guardian, and thus the agency must consent to any subsequent adoption. See 23 Pa.C.S.A. § 2711(a)(5); see also K.N.L, 284 A.3d at 140; and see In re Adoption of J.E.F., 902 A.2d 402, 411 (Pa. 2006). Critically, the Adoption Act authorizes the orphans' court to dispense with the agency's consent, in limited circumstances when "the adoptee is under 18 years of age and has no living parent whose consent is required." 23 Pa.C.S.A. § 2713(2).
"(a) General Rule. Except as otherwise provided in this part, consent to an adoption shall be required of the following: (3) The parents or surviving parent of an adoptee who has not reached the age of 18 years." 23 Pa.C.S.A. § 2711(a)(3).
Section 2714 of the Adoption Act provides:
Consent of a parent to adoption shall not be required if a decree of termination with regard to such parent has been entered. When parental rights have not previously been terminated, the court may find that consent of a parent of the adoptee is not required if, after notice and hearing as prescribed in section 2513 (relating to hearing), the court finds that grounds exist for involuntary termination under section 2511 (relating to grounds for involuntary termination).23 Pa.C.S.A. § 2714.
"(a) General rule. - Except as otherwise provided in this part, consent to an adoption shall be required of the following: (5) The guardian of the person of an adoptee under the age of 18 years…whenever the adoptee has no parent whose consent is required." 23 Pa.C.S.A. § 2711(a)(5) (emphasis added).
Our Supreme Court has interpreted these provisions to mean that an agency, acting as the child's guardian following the termination of parental rights, may not withhold consent to defeat a potential adoption petition. See In re Adoption of Hess, 608 A.2d 10, 14 (Pa. 1992) (citing 23 Pa.C.S.A. § 2713(2)). Subsequent cases addressed whether an agency's withheld consent deprives an individual of standing to file an adoption petition. Our Supreme Court explained that the agency's "withheld consent alone does not destroy a party's standing under [the] traditional standing doctrine." In re Adoption of J.E.F., 902 A.2d 402, 412 (Pa. 2006). K.N.L. further defined the standing doctrine, but only as applied in agency adoptions. K.N.L., 284 A.3d at 140.
A primary function of K.N.L. was to dispel this Court of its mistaken belief that only an individual who currently has in loco parentis status, at the time of the adoption petition, has standing. See K.N.L., 284 A.3d at 138 ("[W]e observe there exists no pronouncement of this Court endorsing such a rule, or any of these criteria [articulated by our precedents], as perquisite to a non-foster-parent, third party's demonstration of standing to intervene in an action to adopt a child in the custody of an agency.").
This is where the Majority goes astray. K.N.L. and J.E.F. held that an agency's withheld consent under Section 2711(a)(5) is not a bar to standing, because the orphans' court may excuse that consent requirement under Section 2713(2). See J.E.F., 902 A.2d at 404-05; see also K.N.L., 284 A.3d at 140 ("As a result of the broad discretionary authority conferred to the adoption court by Section 2713 to dispense with certain consents in the critical context of the child's best interest, and the Act's predication of a decree on a multitude of other requirements subject to the court's satisfaction, we squarely rejected any purported relationship between the threshold issue of a party's standing, and the substantive impact of the Act's consent requirements.")(emphasis added); at 141 ("We reiterate: the agency's withheld consent is not a bar to standing and has no part in the analysis[.]") (emphasis added).
Those precedents, however, have no bearing on a stepparent adoption, where the parent, whose rights remain intact, has withheld her consent. Nothing in J.E.F., nor K.N.L., nor Section 2713 suggests that an orphans' court has discretionary authority to dispense with such a parent's consent under Section 2711(a)(3). Thus, K.N.L. is plainly inapposite. In my view, the Supreme Court's rationale in K.N.L. clearly indicates why its holding only applies where the parental rights of both parents have been terminated, and should not be extended to stepparent adoptions where one parent retains parental rights:
"[N]othing in the [Adoption] Act precludes any party from filing a petition for adoption, nor is there anything to preclude a trial court from entertaining multiple adoption petitions and then determining the best interests of the child. Though we recognize a more stringent test necessarily applies in private custody matters due to the traditionally strong right of parents to raise their children as they see fit, there is no suggestion that a more stringent test for standing should apply in adoption matters, based upon the inherent nature of the action where no such parental rights continue to exist. In these latter situations, the appropriate parameters of standing are not drawn from the statue's provisions, but from traditional jurisprudential standing principles.K.N.L., at 142 (citations and internal quotations omitted) (emphasis added).
It makes sense that the Adoption Act would allow for a broader pool of potential adoptive parents in an agency case, where the child is essentially a temporary orphan. It would not be in the child's best interest to limit the number of qualified third parties seeking to become the child's new parent(s). This underscores why an agency's withheld consent does not, and should not, defeat an adoption petition.
In a stepparent adoption, by contrast, the parent's rights remain intact. That parent retains the right to decide who gets to engraft themselves into the child's family tree, and even that right is limited. Here, Mother's parental rights remain intact, and thus her consent is required by law, not only as it relates to Former Stepfather's petition, but for any adoption. Unlike the consent of the agency-guardian (under Section 2711(a)(5)) in an agency adoption, the orphans' court is not authorized to dispense with a parent's consent (under Section 2711(a)(3)) in a stepparent adoption. Section 2713(2) only authorizes the court to dispense with a living parent's consent when that parent's consent is "not required" - i.e., when that parent's rights have been previously terminated. See 23 Pa.C.S.A. §§ 2711(a)(5), 2714.
Thus, the standing question is simply the wrong question to ask regarding Former Stepfather's petition to adopt. Yes, "any individual may become an adoptive parent" under Section 2312, but that individual must still abide by the rest of the Adoption Act's "exacting substantive and procedural requirements," including the consent requirements set forth in Section 2711. K.N.L., 284 A.3d at 139; see also 23 Pa.C.S.A. § 2701(7) (relating to contents of a petition for adoption). Put another way, whether Former Stepfather had "standing" to file a competing petition is something of a red herring. Regardless of whether Former Stepfather had standing to file a petition for adoption, his petition cannot proceed as a matter of law, because Mother withheld her consent. See 23 Pa.C.S.A. § 2701(7). The orphans' court correctly dismissed Former Stepfather's competing adoption petition, because the court recognized that it had no authority under Section 2713(2) to dispense with her consent. And without Mother's consent, Former Stepfather cannot meet the prima facie case necessary for a stepparent adoption.
I have additional policy concerns with the "breathtakingly broad" implications of the Majority's decision. See Troxel v. Granville, 530 U.S. 57, 67 (2000) (holding unconstitutional Washington state's nonparental visitation statute, which provided standing to "any person" and "at any time."). Application of the Majority's holding now opens the courthouse doors to any and all former partners to file their own petition for adoption any time one parent seeks to terminate the rights of the other parent. Under the majority's decision today, these former partners are now entitled to - at the very least - a hearing on standing to adopt the parent's child, even over the objection of the parent. Former Stepfather could have proceeded with a private termination and stepparent adoption petition at any point during his marriage to Mother. Such action would have required Mother's consent. By eliminating this consent requirement after his divorce from Mother, the Majority gives him a right he would not have had while he was her spouse. With all due respect, the Majority's extension of K.N.L. to a stepparent adoption leads to an "absurd" interpretation of the Adoption Act. See Commonwealth v. Humphrey, 283 A.3d 275, 289 (Pa. 2022) ("When interpreting statutory provisions, we presume that the General Assembly does not intend a result that is absurd, impossible of execution, or reasonable." (citing 1 Pa.C.S.A. § 1922(1))). I recognize Former Stepfather has been in the Child's life since her birth. It may seem cruel - and certainly not in the Child's best interests - if Mother severed the relationship between the Child and the Former Stepfather. As I discuss below, however, this inequity does not arise, because in my view, the custody rights of an in loco parentis former partner survive a stepparent adoption like this one.
II. Former Stepfather's Petition to Intervene
In addition to filing a competing petition for adoption, Former Stepfather filed a separate petition to intervene in the adoption proceeding filed by Current Stepfather. The orphans' court, having already dismissed his competing petition for adoption, did not rule on Former Stepfather's petition to intervene, thereby effectively denying it. Intervention to file a competing adoption petition would not be appropriate, as I explained above. However, intervention to block Current Stepfather's adoption of the Child presents a different question, which requires a separate analysis. On appeal, Former Stepfather argues he had standing to intervene, because he had an interest in the litigation as an in loco parentis individual with custody rights. To answer the intervention question, we must determine whether Former Stepfather has standing.
K.N.L. set forth the following standing principles. "Standing relates to the capacity of an individual to pursue a particular legal action, and requires the petitioning litigant to be adversely affected, or aggrieved, in some way." K.N.L., 284 A.3d at 136 (citing Trust Under Will of Ashton, 260 A.3d 81, 88 (Pa. 2021) and Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975) ("a person who is not adversely affected in any way by the matter he seeks to challenge is not 'aggrieved' thereby and has no standing to obtain a judicial resolution")).
As for standing to file an adoption petition in an agency case, the Court held: "a proper standing inquiry reviews whether a non-foster-parent third party seeking to pursue a petition to adopt a child in the custody of an agency has a genuine and substantial interest in formalizing a permanent parental relationship with the adoptee-child, which surpasses the interest of ordinary, unrelated strangers." Id. at 150.
In the context of a petition to intervene in an adoption case, the Court explained that a nonparty who seeks to intervene must establish a "recognized legal interest" - one that is enforceable through, or affected by, the adoption proceedings - whether or not the moving party would ultimately be bound by the adoption decree. K.N.L., 284 A.3d at 142-43 (citing Hess, 608 A.2d at 12; Pa.R.C.P. 2327). Thus, the Court concluded that if the would-be intervenor can establish an in loco parentis status, then the individual has also established the "recognized legal interest" for purposes of Rule 2327. Id. at 144. See also K.N.L., 284 A.3d at 152-53 (Donohue, J. Concurring).
Rule 2327(4) provides: "At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if: (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action." Pa.R.C.P. 2327(4).
In K.N.L., the Court remanded for a new hearing. At that hearing, if the appellant could establish his in loco parentis status, then he would have a "legally enforceable interest" that would be "affected" by the pending action involving the foster family's adoption petition. In such a scenario, the appellant's petition to intervene would be granted under Rule 2327(4). See id., at 151; see id. at 152 (Donohue, J. Concurring).
Again, the difference between the K.N.L. and the instant matter is paramount. In K.N.L., the appellant's recognized legal interest would be affected by the foster family's adoption; here, by contrast, Former Stepfather's recognized legal interest would not be affected by the Current Stepfather's adoption. As a result, Former Stepfather's petition to intervene fails under Rule 2327(4).
To explain, in K.N.L., the appellant's interest would be "affected" by the adoption by the foster parents, because such an adoption would ultimately terminate the appellant's future right to custody of the child, pursuant to 23 Pa.C.S.A. § 5326 ("Effect of an adoption"). The Court explained: "[The Child Custody Act] now provides, without condition, a 'person who stands in loco parentis to the child' may file an action 'for any form of physical custody or legal custody[,]' and, this right 'shall be automatically terminated upon [an] adoption.'" Id. at 143 (citing 23 Pa.C.S.A. §§ 5324(a), 5326). "[I]f appellant ever had any right to assert in loco parentis standing in a custody matter, it would be extinguished upon entry of an adoption decree." Id. at 144 (citing 23 Pa.C.S.A. § 5326; E.T.S. v. S.L.H., 54 A.3d 880 (Pa. Super. 2012) (under Section 5326, former live-in romantic partner of the children's custodial aunt lost in loco parentis right to seek custody of the children when aunt adopted the children)).
Here, because this matter involves a stepparent adoption, the application of these principles produces a different result. Assuming Former Stepfather stands in loco parentis, he would have a demonstrable "legally enforceable interest" under Rule 2327(4). As such, Former Stepfather has standing to intervene so long as his legally enforceable interest is "affected" by the underlying adoption proceeding involving Current Stepfather and Mother.
Critically, Former Stepfather's recognized legally enforceable interest - that is, his in loco parentis custody rights - are not affected by the Current Stepfather's adoption of the Child. I conclude that the custody rights of Former Stepfather, afforded to him by Mother in their divorce decree (and as an implicit result of his in loco parentis status), survive the Current Stepfather's adoption of the Child.
Because this adoption involves a stepparent, as opposed to a third-party adoption by a foster parent (as in K.N.L.) or by an aunt (as in E.T.S.), the effect of the adoption yields a different result under Section 5326 of the Child Custody Act. As the Supreme Court observed in K.N.L., the effect of an adoption by an unrelated third party terminates all prior rights. However, I believe one's in loco parentis custody rights survive an adoption when the child is adopted by a stepparent.
The Child Custody Act addresses the effect of an adoption:
Any rights to seek physical custody or legal custody rights and any custody rights that have been granted under section 5324 (relating to standing for any form of physical custody or legal custody) or 5325 (relating to standing for partial physical custody and supervised physical custody) to a grandparent or great-grandparent prior to the adoption of the child by an individual other than a stepparent, grandparent or great-grandparent shall be automatically terminated upon such adoption.23 Pa.C.S.A. § 5326 ("Effect of adoption") (emphasis added).
Although the statute allows grandparents and great-grandparents, who received custody rights under Section 5324, to retain those rights following a stepparent adoption, the statute is notably silent regarding those third-parties who received in loco parentis custody rights under Section 5324(2). While our Supreme Court was clear that such rights will be terminated following an adoption by a foster parent, K.N.L., 284 A.3d at 144, it does not follow that such in loco parentis custody rights will necessarily be extinguished by a stepparent adoption. The statute itself does not expressly provide for the termination of these rights in a stepparent adoption.
In a stepparent adoption, one parent retains their rights. Thus, it follows that because the parent's rights remain, the rights of the individual, who received in loco parentis status from the parent, also remain. By contrast, after the rights of both parents have been terminated, the rights of an individual who received in loco parentis status from those parents are automatically terminated upon adoption by foster parents. K.N.L., 284 A.3d at 143-44 (citing 23 Pa.C.S.A. § 5326).
It would be unreasonable to conclude, in the absence of clear authority, that a stepparent adoption will automatically sever the relationship between a child and a parent's former partner who has in loco parentis status - a former partner who had supported and nurtured the child, and considered the child as their own. An automatic severance would certainly not be in a child's best interests.
Moreover, the Child Custody Act is perfectly equipped to address any potential acrimony between the parent, the adoptive parent, and the former partner, while simultaneously protecting the best interests of the child. See 23 Pa.C.S.A. §§ 5328(a) (relating to the custody factors), 5327(b)(relating to the presumption between parents and third parties).
It would not be the case that the child would be left with "three legal parents." See Majority Opinion at 19 (citing In re: Adoption of R.A.B., 1364 EDA 2007 (Pa. Super. 2008) (unpublished memorandum)). Rather, such a holding would simply mean that a third individual has custody rights - a possibility not foreign to the Child Custody Act. See, e.g., 23 Pa.C.S.A. §§ 5234(2), 5325 (relating to grandparent standing). I note further that the Majority's reliance on R.A.B. is misguided for two reasons. First, R.A.B. was decided in an unpublished memorandum in 2007. Per 210 Pa. Code § 65.37, only non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value. See also Pa.R.A.P. 126(b). An unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a party in any other action or proceeding (except in certain circumstances which are not present here). See 210 Pa. Code § 65.37(b). Second, R.A.B. was predicated upon the prior iteration of the Child Custody Act, specifically 23 Pa.C.S.A. § 5314 ("Exception for adopted children) (repealed). The text of Section 5314 was far more hostile to previously-held custody rights than the current Section 5326. The former Section provided: "Any visitation rights granted pursuant this section prior to the adoption of the child shall be automatically terminated upon such adoption." 23 Pa.C.S.A. § 5314 (emphasis added).
Indeed, the automatic termination of in loco parentis custody rights seems contrary to precedent. In T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001), the Court considered whether the former same-sex partner of the mother had in loco parentis standing to seek custody of the child. The mother had argued that, because the former partner lacked standing to adopt the child - given the fact that this case predated the legalization of same-sex marriage - the former partner necessarily lacked standing to seek in loco parentis custody. The Court disagreed. T.B., 786 A.2d at 918-19. "The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties." Id. at 919. "[A] biological parent's rights 'do not extend to erasing a relationship between her [former] partner and her child which she voluntarily created and actively fostered simply because after the parties' separation she regretted having done so.'" Id. (Citing J.A.L. v. E.P.H., 682 A.2d 1314, 1322 (Pa. Super. 1996)). Although T.B. did not involve the effect of an adoption under Section 5326, its holding suggests: 1) Former Stepfather's inability to adopt the Child has no effect on his existing custody rights; and 2) Mother lacks the authority to automatically extinguish the long-standing relationship she fostered between the Child and Former Stepfather.
Here, the stepparent adoption does not impact Mother's parental rights. Because her rights remain unchanged, so do Former Stepfather's in loco parentis custody rights. In my view, Former Stepfather's custody rights survive the Current Stepfather's adoption of the Child. Because Former Stepfather retains the ability to exercise and enforce his custody rights, he is not aggrieved by the adoption proceeding between Mother and Current Stepfather. Thus, he lacks standing to intervene.
I do not believe Current Stepfather's ascension to legal parenthood has any impact on this analysis. For instance, had the petitioner in this case been a grandparent, Current Stepfather would not have the authority to deny a grandparent standing to seek custody under Section 5326. Thus, his opinion about whether Former Stepfather's rights survive the adoption is of no moment. Of course, Current Stepfather necessarily obtains parental rights as a result of his adoption of the Child. Current Stepfather may utilize those rights in custody litigation, where he may argue that it would not be in the Child's best interest for Former Stepfather to have custody. See 23 Pa.C.S.A. § 5328(a). In such an action, he would be entitled to the presumption afforded to natural parents. See 23 Pa.C.S.A. § 5327(b). The only legal impact of Current Stepfather's adoption is that Current Stepfather becomes the Child's legal parent in place of Biological Father; Former Stepfather's rights are not impacted by this substitution.
In summation of my second point, I conclude that it is proper to apply standing principles to resolve Former Stepfather's petition to intervene. In doing so, I recognize that Former Stepfather has a legally enforceable interest. Nonetheless, I conclude that this legally enforceable interest was not affected by the Current Stepfather's adoption, because his in loco parentis custody rights survive a stepparent adoption. As such, Former Stepfather has no standing to intervene, because he is not an aggrieved party. The orphans' court properly denied his intervention petition.
III. Appointment of counsel
As a final housekeeping measure, I part ways with the Majority's decision to remand for the appointment of counsel and/or a guardian ad litem for the Child for the adoption proceeding. I do not believe that such an appointment is mandatory under the Adoption Act. In the context of an adoption proceeding, the appointment is merely discretionary. Because
Former Stepfather did not raise this question during the proceedings below, this Court lacks authority to address this issue sua sponte.
The Adoption Act provides:
(a) Child.--The court shall appoint counsel to represent the child in an involuntary termination proceeding when the proceeding is being contested by one or both of the parents. The court may appoint counsel or a guardian ad litem to represent any child who has not reached the age of 18 years and is subject to any other proceeding under this part whenever it is in the best interests of the child. No attorney or law firm shall represent both the child and the adopting parent or parents.23 Pa.C.S.A. § 2313(a) (emphasis added).
Supreme Court has explicitly addressed the difference between the words of "shall" and "may" in Section 2313(a).
The language of Section 2313(a) at issue in this contested [termination of parental rights (TPR)] case reads, in pertinent part, "The court shall appoint counsel to represent the child ...." "The word 'shall' by definition is mandatory and it is generally applied as such." Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923 A.2d 1099, 1104 (2007)(citations omitted). When a statute is unambiguous, "shall" must be construed as mandatory. Id. Here, the use of "shall" is unambiguous and hence, mandatory. The statutory language does not suggest anything other than the general meaning of the word. By contrast, the statute's second sentence uses the term "may" in connection with "any other proceeding" (i.e., anything other than a contested TPR) evidencing the fact that our General Assembly knows well how to use non-mandatory language when it wishes to do so. The lawmakers codified a mandatory appointment of counsel for contested TPR cases, and, in the very next sentence, codified a discretionary provision for other proceedings. There is no ambiguity in the statute. We may not manufacture one." (footnote omitted).In re Adoption of L.B.M., 161 A.3d 172, 179-80 (Pa. 2017) (emphasis added).
Thus, Section 2313(a) only mandates the appointment of counsel during the involuntary termination proceeding involving Biological Father. That proceeding is now over. Only Current Stepfather's adoption petition remains. Although the orphans' court had discretion to appoint counsel or a guardian ad litem for the duration of the adoption proceedings - and I would encourage the court to do so in future contested adoption proceedings - the court was under no obligation to make such an appointment. I need not discuss the Majority's interpretation of our binding precedents, for they all concern the first clause of Section 2313(a) (relating to termination proceedings) and thus are readily distinguishable. Here, the Majority's appointment is predicated upon the second clause. As our Supreme Court already clarified, this second clause is a "discretionary provision." L.B.M., 161 A.3d at 179.
Moreover, we may not review the orphans' court decision to not appoint representation for the Child in this adoption proceeding. Former Stepfather did not raise an objection to or submit any request regarding the Child's lack of representation. As a result, the issue is waived. See Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in the trial court); see also Fillmore v. Hill, 665 A.2d 514, 515-516 (Pa. Super. 1995) ("[I]n order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court.") (Citation omitted). Although our Supreme Court has clearly held that the issue of appointment of counsel for a child in a contested termination case is not waivable and may be raised sua sponte by an appellate court (see In re Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020)), the same holding has not been applied in an adoption case. As such, I conclude that the issue is waived and that this Court lacks authority to raise it sua sponte.
In sum, I respectfully dissent for the following reasons: 1) Mother's withheld consent under 23 Pa.C.S.A. § 2711(a)(3) renders Former Stepfather's adoption petition not cognizable as a matter of law and a remand is unnecessary because he cannot establish a prima facie case for adoption; 2) Former Stepfather lacks standing to intervene in this action, because his in loco parentis custody rights are not affected by the Current Stepfather's adoption; 3) Section 2313(a) does not mandate the appointment of counsel and/or a guardian ad litem in an adoption proceeding; we may not review the lower court's discretionary decision to not appoint representation, because Former Stepfather failed to preserve the issue. Thus, I would affirm the orphans' court's decision to dismiss Former Stepfather's petitions and uphold Current Stepfather's adoption decree.
Judge Olson joins the dissenting opinion.
CONCURRING OPINION
DUBOW, J.
I agree with the Majority Opinion's disposition vacating the decree that, inter alia, dismissed Former Stepfather's petitions to intervene and adopt. I further agree with the Majority Opinion's holding that this case should be remanded for a determination of Former Stepfather's standing. I write separately, however, to express my disagreement with the Majority Opinion's mandate that, upon remand, the trial court must appoint legal counsel for Child in the contested adoption proceeding. Section 2313 provides that "[t]he court may appoint counsel or a guardian ad litem to represent any child who . . . is subject to any other proceeding under this part whenever it is in the best interests of the child." 23 Pa.C.S. §2313(a) (emphasis added). The Majority Opinion finds that it is in Child's best interest to appoint counsel for Child in the instant contested adoption proceeding and directs the trial court to do so. In contrast, I believe that whether it is in Child's "best interest" to appoint counsel is a factual determination that the trial court must make in the first instance. I would, therefore, remand for the trial court to decide whether appointing counsel in the adoption proceeding would, in fact, be in Child's best interest rather than making that factual determination at the appellate level. I agree with the well written and analyzed Majority Opinion in all other respects.
President Judge Panella, Judges Nichols and Sullivan join the concurring opinion.