Adoption of: A.M.W., Appeal of: M.J.G. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: A.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.J.G. :
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: No. 519 MDA 2021
Appeal from the Decree Entered March 31, 2021
In the Court of Common Pleas of Bradford County Orphans’ Court at
No(s): 18 ADOPT 2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY MURRAY, J.:FILED: FEBRUARY 14, 2022
After carefully reviewing the record, I respectfully dissent on the basis
that the orphans’ court’s failure to appoint counsel for Child was contrary to
Child’s best interests.
The Majority found Former Stepfather waived this claim because he “did
not raise an objection to or submit any filing and/or request as to the Child’s
lack of representation with the trial court subsequent to the termination
proceedings.” Maj. at 21. However, our Supreme Court has held this claim
is not waivable. See In re Adoption of K.M.G., 240 A.3d 1218, 1234-35
(Pa. 2020) (appellate court may raise issue of child’s right to counsel sua
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* Former Justice specially assigned to the Superior Court.
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sponte); In re T.S., 192 A.3d 1080, 1087 (Pa. 2018) (issue of whether
orphans’ court erred in not appointing counsel for child is non-waivable).
The Majority further concluded that even if not waived, the issue lacked
merit. Maj. at 21-22. It stated, “[w]hile permissible, the statute does not
require that counsel be appointed beyond the termination proceedings.” Id.
at 22 (citation omitted). However, the Majority does not address whether the
orphans’ court acted in Child’s best interests in not appointing counsel.
Previously, the orphans’ court appointed counsel to represent Child in
the uncontested termination of biological father’s parental rights, where Child
had no relationship with biological father. Id. at 3, 22. Conversely, Child
lacked representation in the adoption proceedings, where Child had a strong
relationship with Former Stepfather — who is the only father Child had known
— and the record contains little information about Child’s relationship with
Current Stepfather. Id. at 3; Orphans’ Court Opinion, 3/29/21, at 1-2. My
review discloses no dispute that Former Stepfather was in loco parentis1 to
Child, paid child support, and shared legal and physical custody of Child after
separating from Mother. Id. The record also suggests that Current Stepfather
filed the petition to adopt Child less than two years after marrying Mother in
order to circumvent Mother’s custody agreement with Former Stepfather.
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1 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).
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Child was 11 years old at the time of the adoption proceedings, yet the
orphans’ court opinion is devoid of any reference to Child’s views about being
adopted by Current Stepfather, or any examination of whether adoption was
in Child’s best interests. In my view, the orphans’ court failed to act in Child’s
best interests by not appointing counsel for Child in the adoption proceedings.
See K.M.G., 240 A.3d at 1234 (“counsel [ ] serve[s] 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.”); 23 Pa.C.S.A. §
2313(a).
This Court was presented with a similar scenario 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, where a
mother parented her child conceived by artificial insemination with her
partner, who stood in loco parentis to the child. Id. at 1-2. The relationship
between mother and her partner ended when the child was three; the mother
subsequently married and her husband sought to adopt the child. Id. at 2.
The partner successfully intervened in the adoption proceedings, and after an
8-day trial, the orphans’ court granted the husband’s adoption petition. Id.
The partner appealed, and although we upheld the orphans’ court’s
determination regarding the merits of husband’s petition, we vacated and
remanded based on our concern that application of the Adoption Act had
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vacated the custodial rights of the partner, who was in loco parentis to the
child. Id. at 7-9. We stated:
[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 R.A.B. either created a situation
where R.A.B. has three legal parents, or effectively eliminated
appellant’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 R.A.B., since, as recognized by counsel
appointed to represent the interest of R.A.B, the experts
produced by the respective parties were adamant that appellant’s
relationship with R.A.B. should be maintained.
Id. at 9 (emphasis added).
Here, while Former Stepfather’s custody was not court-ordered, Former
Stepfather and Mother had adhered to a binding custody arrangement they
negotiated and included in their legally enforceable post-nuptial agreement.
While Child is older than the child in R.A.B., and has a longer-standing
relationship with Former Stepfather, the orphans’ court, unlike the court in
R.A.B., did not appoint counsel, and no one represented Child’s interests. In
my view, because Former Stepfather stood in loco parentis to Child, the
orphans’ court “effectively eliminated [Former Stepfather’s] parental rights
without due consideration for the consequences.” Id. Accordingly, I would
vacate the adoption decree and remand for appointment of counsel 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. I therefore dissent.
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