Adoption of: A.M.W., Appeal of: M.J.G. ( 2023 )

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2023 PA Super 10IN 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 18 ADOPT 2020
BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.
OPINION BY MURRAY, J.: FILED JANUARY 19, 2023
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).1 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.
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1 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).
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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]
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returns from Italy.”2 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.3 Id.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.4
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2 Former Stepfather is in the United States Air Force and was on active duty
in Italy at the time.
3 The status of the petition is unclear from the record.
4 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
(Footnote Continued Next Page)
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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.5
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
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through the formality of a legal adoption.” K.X. v. S.L., 157 A.3d 498, 505
(Pa. Super. 2017) (citations omitted).
5 Former Stepfather and the trial court have complied with Pa.R.A.P. 1925.
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[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.
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(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
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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:
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[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
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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).6 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.
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6 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).
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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
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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.7 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
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7 He was also the biological mother’s former “romantic partner and longtime
friend.” Id. at *2.
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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).
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
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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.
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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
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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
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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
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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.
…
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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.
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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
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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.
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Judge Kunselman files a dissenting opinion in which Judge Olson joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2023
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