Adoption of: M.R.D., Appeal of: R.D.D. & M.K.D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF M.R.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.D.D., SR., AND M.K.D. :
:
:
:
:
: No. 1631 WDA 2019
Appeal from the Order Entered October 8, 2019
In the Court of Common Pleas of Allegheny County Orphans’ Court at
No(s): A-19-036
BEFORE: SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 23, 2020
Appellants, R.D.D., Sr., (Maternal Grandfather) and M.K.D. (Maternal
Grandmother), (collectively Grandparents), appeal from the order denying
their petition to intervene in the adoption of their three-year-old
granddaughter, M.R.D. (Child) (born August 2016), by J.R.D. (Stepmother).
Upon review, we dismiss as moot.
At the time of Child’s birth, S.A.D. (Father), and his wife, K.V.D.
(Mother), lived with Grandparents in their home in Clarion County. Orphans’
Court Opinion, 11/22/19, at 2. Mother suffered an aneurysm one day after
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* Retired Senior Judge assigned to the Superior Court.
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giving birth to Child; as a result, Mother was in a vegetative state, and passed
away in December 2017.
Father remained in Grandparents’ home with Child until June 23, 2018,
when Child was approximately 22 months old. Orphans’ Court Opinion,
11/22/19, at 2. The Court of Common Pleas of Clarion County (custody court)
found that “the maternal grandparents physically prevented Child from leaving
with Father. . . .” Id. By order dated July 6, 2018, the custody court directed
that Child be returned to Father. Id. at 3, n. 1. Child has resided with Father
in Allegheny County since that time. Id. at 3.
Litigation continued in the custody court, and by temporary order dated
July 13, 2018, the custody court granted Grandparents partial physical
custody on alternating weekends from Saturday at 10:00 a.m. until Sunday
at 5:00 p.m. Amended Preliminary Objections, 8/8/19, at Exhibit 1.
At a time unspecified in the record, Father married Stepmother. On
June 20, 2019, Stepmother filed an adoption petition in Allegheny County
(adoption court) pursuant to 23 Pa.C.S.A. § 2701. On July 26, 2019,
Grandparents filed a petition to intervene. Grandparents alleged that they
were not served with notice of the adoption petition, and learned of the
petition during the custody trial in July 2019. In addition, Grandparents
claimed the custody court issued a final custody order on July 11, 2019,
finding that Grandparents stood in loco parentis to Child, inter alia.
Grandparents stated that they “wish to have a continuing relationship with
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their grandchild and to provide her with a positive influence in her life, and to
provide a sense of stability and family.” Petition to Intervene, 7/26/19, at ¶
15.
On August 7, 2019, Stepmother filed preliminary objections, which she
amended on August 8, 2019. Stepmother asserted she “was not legally
mandated to obtain consent from [Grandparents] or provide any notice” of
the adoption petition. Amended Preliminary Objections, 8/8/19, at ¶ 10.
Stepmother stated that Grandparents “have failed to raise any legitimate or
legally sufficient basis in their [p]etition to [i]ntervene upon which relief may
be granted.” Id. at ¶ 18. As such, Stepmother requested that the adoption
court dismiss Grandparents’ petition to intervene.
In her amended preliminary objections, Stepmother attached the July
11, 2019 custody order, which confirmed that the custody court found
Grandparents to be in loco parentis to Child.1 See Amended Preliminary
Objections, 8/8/19, Exhibit 2. In addition, the custody court granted Father
sole legal and primary physical custody, with Grandparents having partial
physical custody on alternating weekends from Friday at 7:00 p.m. until
Sunday at 6:00 p.m.; the order also provided for custody during holidays. Id.
at ¶ 3. Although the custody court granted Father sole legal custody, it
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1By being in loco parentis, Grandparents have standing to file for any form of
physical or legal custody under the Child Custody Act, 23 Pa.C.S.A. §§ 5321-
5340. See 23 Pa.C.S.A. § 5324(2).
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directed that he “shall keep [Grandparents] informed of all major decisions
concerning the child including where she is attending day care, pre-school,
school, and medical treatment other than routine matters, and all information
that would have been deemed important to another parent.” Id. at ¶ 1. The
custody court also permitted Grandparents “full access to all documents and
information pertaining to the child upon request.” Id.
The adoption court held oral argument on Stepmother’s amended
preliminary objections on October 8, 2019. Counsel introduced as exhibits,
and the court admitted, portions of the record from the custody action
including, but not limited to, transcripts from the July 1 - 2, 2019 custody
trial, and the July 11, 2019 custody order.
Stepmother’s counsel argued, in part, that Grandparents failed to state
a claim upon which relief could be granted because they did not include in
their petition the remedy or relief they sought. N.T., 10/8/19, at 17.
Grandparents’ counsel responded:
With regard to relief, what we want is the ability to see the file,
and we can’t see that unless we intervene because it’s sealed. . .
. So had I been able to go to the courthouse and pull that pleading
and make sure that the averments in the pleading are true and
correct, I might not have had to file a Petition to Intervene. But I
had no other way to get a copy of that information. It was not
provided to my clients.
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N.T., 10/8/19, at 19. Further, Grandparents’ counsel argued that
Grandparents had standing to intervene in the adoption proceeding because
they stood in loco parentis to Child in the custody action.2 Id. at 20.
The adoption court concluded that Grandparents did not have standing
to intervene in the adoption proceeding. Id. at 23-24. By order dated October
8, 2019, the adoption court denied Grandparents’ petition to intervene. That
same day, the adoption court issued a decree granting the adoption by
Stepmother.
On November 4, 2019, Grandparents timely filed a notice of appeal from
the order denying their petition to intervene. On November 22, 2019, the
adoption court filed an opinion without the benefit of a concise statement of
errors complained of on appeal, because Grandparents failed to file it
concurrently with their notice of appeal in contravention of Pa.R.A.P.
1925(a)(2)(i) and (b). By order dated November 26, 2019, this Court directed
Grandparents to file the concise statement by December 10, 2019, and they
timely complied. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)
(holding that appellant’s failure to strictly comply with Pa.R.A.P. 1925(a)(2)
did not warrant application of the waiver rule, as no court order had been
violated, and there was no prejudice to any party); Cf. J.M.R. v. J.M., 1 A.3d
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2We note Grandparents did not assert: (1) their in loco parentis status and
partial custody award would be terminated by Stepmother’s adoption; (2)
Stepmother is not fit to adopt Child; or (3) they wished to file an adoption
petition.
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902, 907 (Pa. Super. 2010) (stating that appellant’s failure to comply with an
order from this Court to file a Rule 1925(b) statement will result in the waiver
of the issues on appeal).
On appeal, Grandparents request that we review “[w]hether the
[adoption] court abused its discretion or erred as a matter of law in denying
[their] petition to intervene in the adoption proceedings regarding their
grandchild[?]”3 Grandparents’ Brief at 8. Grandparents contend that the
adoption court abused its discretion and/or committed an error of law
pursuant to Pa.R.C.P. 2327(4).4 In addition, they assert that it was in Child’s
best interests that they be permitted to intervene.
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3 When considering an appeal from an orphans’ court (the adoption court)
order, our standard of review is an abuse of discretion. In re Adoption of
R.J.S., 889 A.2d 92, 96 (Pa. Super. 2005). We have explained, “This [C]ourt
must determine whether the record is free from legal error and the orphans’
court’s factual findings are supported by the evidence.” Id. (citation omitted).
4 Rule 2327. Who May Intervene
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).
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Upon review, we find Grandparents’ issue moot. We have explained,
“‘An issue before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.’” In Re D.A., 801 A.2d 614,
616 (Pa. Super. 2002) (en banc) (quoting Johnson v. Martofel, [797 A.2d
943, 946 (Pa. Super. 2002)]. This Court “may address mootness sua sponte,
as we generally cannot decide moot or abstract questions, nor can we enter a
judgment or decree to which effect cannot be given.” M.B.S. v. W.E., ___
A.3d ___, ___, 2020 Pa. Super. LEXIS 418, *7 (Pa. Super. 2020) (citations
omitted).
The following exceptions apply to the mootness doctrine:
1) the case involves a question of great public importance, 2) the
question presented is capable of repetition and apt to elude
appellate review, or 3) a party to the controversy will suffer some
detriment due to the decision of the trial court. Erie Insurance
Exchange v. Claypoole, 449 Pa. Super. 142, 673 A.2d 348 (Pa.
Super. 1996); Commonwealth v. Smith, 336 Pa. Super. 636,
486 A.2d 445 (Pa. Super. 1984).
In Re D.A., 801 A.2d at 616.
Instantly, the adoption court issued the adoption decree, which
Grandparents did not contest, on October 8, 2019. Because there is no
proceeding pending, this Court cannot enter a disposition that will have “any
legal force or effect.” Id.Further, the exceptions to the mootness doctrine do not apply. This
case does not present a question of great public importance, and the question
presented is not capable of repetition and apt to elude appellate review. On
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October 8, 2019, the adoption court issued both the order denying
Grandparents’ petition to intervene and the adoption decree, and
Grandparents did not file a petition to set aside or vacate the adoption decree
in the adoption court. Finally, Grandparents will not suffer a detriment due to
the decision denying their petition to intervene. Section 5326 of the Custody
Act provides:
§ 5326. Effect of 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 (emphasis added). Because Child was adopted by
Stepmother, Grandparents’ right to seek any form of physical or legal custody
under Section 5324 and their partial physical custody granted in the July 11,
2019 order will not be terminated by the adoption. Accordingly, we dismiss
Grandparents’ appeal as moot.
Appeal dismissed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2020
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