In Re Adoption of Hess

OPINION

NIX, Chief Justice.

The instant appeal presents the Court with the issue of whether grandparents may be permitted to participate in proceedings for the adoption of their grandchildren. The appeal arises from the Superior Court’s reversal of an order of the Lancaster County Common Pleas Court, Orphans’ Court Division, dismissing the grandparents’ Complaint for Custody and Petition to Intervene in state adoption proceedings instituted after the parents’ rights to the grandchildren were terminated.

Sometime prior to June 15, 1987, Melanie Lynn and Matthew James Hess, four and five-year old siblings, were placed in the custody of the Family and Children’s Service of Lancaster County by their birth parents, Tina Marie Hess and Kenneth John Hess. On September 25,1987, Tina Marie Hess and Kenneth John Hess executed Consents to Adoption. At approximately the same time, the Family and Children’s Service placed the children in their adoptive home. On November 6, 1987, Reports of Intent to Adopt were filed by persons having custody of Melanie Lynn Hess and Matthew James Hess.

The Family Service of Lancaster County filed a Petition to Confirm Consents pursuant to the provisions of Section 2504 of the Adoption Act. A hearing on the petition was scheduled for November 24, 1987, and proper notice of the hearing was sent to the natural parents.

After the hearing, a Final Decree was issued by the trial court confirming the consents and terminating the parental rights of Tina Marie Hess and Kenneth John Hess. This Final Decree transferred custody of the children to the Family Service of Lancaster County, and granted the Family Service “... full authority to consent to the adoption of the minor children ... without further consent of or notification to Tina Marie Hess or Kenneth John Hess.”

The grandparents have asserted repeatedly that they were not informed that the children were being placed with Family Services in June, 1987. They claim that when they were finally told of the parents’ intentions to put the children up for adoption, they attempted to obtain from Family Services information as to the children’s whereabouts and sought an opportunity to express their desire to provide a home for the children and to reunite them with their siblings. The grandparents claim that their efforts were consistently rebuffed by Family Service, which refused to give them any information until January of 1988 when they were notified that the parental rights had been terminated. At that time, Mr. and Mrs. Hess filed a Complaint in Equity seeking to enjoin the adoption, to obtain leave to intervene, and other relief. The complaint was dismissed with leave to refile the Complaint in the Orphans’ Court.

On March 17, 1988, the grandparents filed in the Orphans’ Court a “Petition to Intervene and Stay Proceedings,” a “Complaint for Custody,” and “Partial Custody and/or Visitation,” claiming that their personal constitutional rights, as well as provisions of the Adoption Act,¹ the Children and Minors Act,² and the Juvenile Act,³ entitled them to intervene in the adoption proceedings and to seek custody of their grandchildren after the natural rights had been terminated. The trial court granted the preliminary objections of Family Service, and dismissed the grandparents’ petition and complaint without hearing.

The grandparents appealed to the Superior Court, which reversed the trial court’s order, stayed the adoption proceedings, and remanded the matter to the trial court for hearings on the grandparent’s petition and complaint. In re Adoption of Hess, 386 Pa.Super. 301, 562 A.2d 1375 (1989). The Superior Court found that the trial court, in ascertaining the best interests of the child, must consider all evidence bearing on those interests. Id. Where, as here, the party seeking to intervene in the action has lived with the child, has obtained custody of his or her siblings, and has averred that the child’s best interests are contrary to those asserted by the agency, the trial court’s summary dismissal of that party’s complaint amounts to a default of its responsibility to determine the child’s best interest. Family Service appealed that decision to this Court.

Appellant claims that the Superior Court abused its discretion in reversing the Court of Common Pleas. Family Service argues that once the biological parents voluntarily terminated their parental rights and placed the children with the agency for placement in an adoptive home, the rights of other biological relatives also cease. Appellant submits that a contrary result would call into question the propriety and finality of adoptions in the Commonwealth. Additionally, Family Service contends that permitting appellees to intervene is unnecessary, because Family Service has no intention of consenting to the grandparents adoption of the children. Appellant insists, and the trial court agreed, that the grandparents have no recognized legal interest in the adoption proceedings and, therefore, are not entitled to participate. As the trial court stated,

The grandparents are not guardians of the children, nor are they the custodians of the adoptees since by decree of termination custody was awarded to the Family and Children’s Service with authority to consent to the adoption. The consent of the grandparents is not required since they are not a party in interest in this adoption proceedings. Thus, the preliminary objections to the Petition to Intervene and Stay Proceedings must be sustained.

Since the grandparents are not a party in interest in the adoption proceedings, they have no right to appear during the pendency of such proceedings and demand custody, partial custody and/or visitation.

In re Adoption of Hess, No. 2211/2, 1987 slip op. at 3-4 (Court of Common Pleas of Lancaster County, April 21, 1988) (emphasis added).

Appellees argue, however, that the Superior Court correctly determined that the trial court’s refusal to consider the grandparents’ assertions was an abdication of its duty to consider all facts bearing upon a determination of the child’s best interests. For the reasons that follow, we agree with appellees’ assertions, and we affirm the Superior Court.

Rule 2327 of the Pennsylvania Rules of Civil Procedure, Pa.R.Civ.P. 2327, governs intervention in a cause of action. In pertinent part, the rule provides the following guidelines:

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

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(3) such person could have joined as an original party in the action or could have been joined therein.

As previously stated, the trial court found that the grandparents had no interest in the proceedings. The trial court’s determination, however, begs the question of whether the grandparents were ever entitled to inject themselves into a series of proceedings designed to effectuate the best interests of two of their grandchildren, especially where, as here, they sought to adopt the children. Under these guidelines, and for the following reasons, the grandparents should have been permitted to intervene.

We begin our analysis by noting that the issues raised in this appeal, while they concern matters of custody, must be considered as adoption issues. The court obtained jurisdiction over this matter by the filing of the necessary papers under the Adoption Act. Those filings set in motion proceedings to have Melanie and Matthew placed with adoptive parents. The grandparents’ petition sought to intervene in the adoption proceedings. Wherever possible, we must be guided by the specifications of the Adoption Act in making our determination. See, e.g., Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 445 A.2d 1314 (1982).

The Adoption Act sets forth specific procedures that must be followed by a party seeking to adopt a child. Under its provisions, once parental rights are terminated, “[a]ny individual may become an adopting parent.” 23 Pa.C.S. § 2312. A party seeking to adopt a child must first file a Report of Intention to Adopt. 23 Pa.C.S. § 2531(c). A report is also filed by the intermediary who arranged the adoption, and an investigation is conducted to determine the suitability of the adoption. 23 Pa.C.S. § 2535. Once the proposed adoption is determined to be feasible, the adoption procedure is commenced. 23 Pa.C.S. § 2701 et seq. A Petition to Adopt must be filed, and the court shall obtain any necessary consents to the adoption. 23 Pa.C.S. § 2711(a).⁴ The court then holds a hearing for a final determination of whether the adoption decree should be entered. 23 Pa.C.S. § 2721. At all stages of the proceedings, the best interest of the child is the paramount consideration. See, 23 Pa.C.S. § 2902(a).⁵

While Family Service correctly argues that no presumption exists in favor of the grandparents, it is equally true that no presumption exists against them. Conversely, the Act contemplates that a grandparent might choose to adopt his or her grandchild, and allows the grandparent to benefit from the relationship to the child by relieving the grandparent of the obligation to file a Report of Intention to Adopt. 23 Pa.C.S. § 2531(c). Thus while the Act does not reflect a preference for a grandparent’s adoption, it clearly does not exclude grandparents from being considered as prospective adoptive parents.⁶ A grandparent seeking to adopt a grandchild also must indicate his or her relationship to that child in the Petition to Adopt. 23 Pa.C.S. § 2701(1). This requirement indicates that a relationship between the proposed adoptive parent and the adoptee is a relevant consideration.

Additionally, under the Children and Minors Act, 23 Pa. C.S. § 5301, et seq., grandparents have the right to seek visitation and/or custody of their grandchildren until the children are adopted by someone other than a stepparent or grandparent. 23 Pa.C.S. §§ 5313, 5314. This statute demonstrates an intention on the part of the Pennsylvania

legislature to encourage the maintenance of family relationships wherever possible, a policy which is especially relevant in this instance, because the grandparents already have custody of the children’s siblings. See, e.g., Albright v. Commonwealth ex rel., Fetters, 491 Pa. 320, 421 A.2d 157 (1980) (grandparents given custody as opposed to parents where grandparents would keep siblings together); Pilon v. Pilon, 342 Pa.Super. 52, 492 A.2d 59 (1985). Moreover, it illustrates the expectation that grandparents in some instances will desire to adopt their grandchildren.

We next address Family Service’s contention that, ultimately, the grandparents’ intervention will be an exercise in futility. Family Service asserts that since the rights of the children’s natural parents have been terminated, and the agency stands in loco parentis to the child, 23 Pa.C.S. § 2521(c),⁷ its consent is required under 23 Pa.C.S. § 2711(a)(5)⁸ before an adoption can take place. The agency argues that it does not intend to consent to an adoption by the grandparents, and offers the bald assertion that the possibility exists for collusion between the grandparents and the natural parents. See Appellant’s Brief at p. 9. Thus, the agency contends that permitting the grandparents to seek custody or otherwise become involved in the children’s lives will only add to the instability in their lives.

The flaws in appellant’s argument on this point are readily apparent. First, as previously stated, it is clear from the Act that the court’s concern is not the will of the agency but the best interests of the child. Under 23 Pa.C.S. § 2535(b), once Reports of Intention to Adopt are filed, an investigation is conducted by a person designated by the court to ascertain whether the proposed placement is suitable for the emotional needs and welfare of the child. The Act directs the court, upon a hearing on a Petition for Adoption, to take testimony and, if necessary, to order an investigation to decide whether the granting of the Petition suits “the physical, mental, and emotional needs and welfare of the child.” 23 Pa.C.S. § 2724(b). The Act also permits the court, “whenever it is in the best interests of the child,” to appoint counsel or a guardian to represent a minor child. Thus, the Act clearly focuses on the needs of the child, reflecting the policies expressed at common law. See, In re Hookey, 419 Pa. 583, 215 A.2d 860 (1966); In re Stone, 398 Pa. 190, 156 A.2d 808 (1959). See, e.g., In re Adoption of Jacono, 426 Pa. 98, 231 A.2d 295 (1967). See also, Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 445 A.2d 1314 (1982). The agency’s wishes, therefore, are to be considered in light of that objective.

Moreover, despite the agency’s adamant insistence that it will not consent to the adoption by the grandparents, the Act makes clear that the court has the final burden of determining whose consent is necessary. The language of 23 Pa.C.S. § 2713(2) provides that “[t]he court, in its discretion, may dispense with consents other than that of the adoptee to a petition for adoption when ... the adoptee is under 18 years of age and has no parent living whose consent is required.” Under the facts of this case, the rights of the children’s natural, living parents have been terminated, so their consent is not required. Accordingly, it seems clear that if the court determines that the agency’s consent is being withheld unreasonably, the court may dispense with the requirement of § 2711(a)(5) that the agency consent to the adoption. The agency’s implicit assertion that its opinion will somehow control the outcome of the adoption is therefore baseless.⁹

Finally, we think it important to emphasize that by permitting the grandparents to intervene, we are not guaranteeing that they will prevail. Certainly there may be legitimate factors, such as health or infirmities, which might be construed against the grandparents. Nevertheless, they should be permitted to participate in the proceeding just as any other individual or individuals who seek to adopt a child. A child’s interests are best served when all those who demonstrate an interest in his or her welfare are allowed to be heard. Therefore, at the very least, the grandparents should have been welcomed by the agency to offer what information they could in relation to their grandchildren’s best interests. That the agency has taken the opposite position is regrettable; that the court sanctioned the agency’s actions, without a substantive justification, as the Superior Court determined, is completely unacceptable. Accordingly, the order of the Superior Court is affirmed.

FLAHERTY, J., files a dissenting opinion in which ZAPPALA and CAPPY, JJ., join. ZAPPALA, J., files a dissenting opinion.

1 . 23 Pa.C.S. § 2101, et seq.

2 . 23 Pa.C.S. § 5301, et seq.

3 . 42 Pa.C.S. § 6301, et seq.

4 . See infra, n. 5 for the text of the statute.

5 . § 2902. Requirements and form of decree of adoption

(a) General rule. — If satisfied that the statements made in the petition are true, that the needs and welfare of the person proposed to be adopted will be promoted by the adoption and that all requirements of this part have been met, the court shall enter a decree so finding and directing that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent or parents and shall be subject to the duties of a child to him or them.

23 Pa.C.S. § 2902 (emphasis added).

6 . Indeed, our society has many examples of grandparents successfully raising their grandchildren.

7 . § 2521. Effect of decree of termination

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(c) Authority of agency or person receiving custody. — An agency of person receiving custody of a child shall stand in loco parentis to consent to marriage, to enlistment in the armed forces and to major medical, psychiatric and surgical treatment and to exercise such other authority concerning the child as a natural parent could exercise.

1980, Oct. 15, P.L. 934, No. 163 § 1, effective Jan. 1, 1981.

8 . § 2711. Consents necessary to adoption

(a) General Rule. — Except as otherwise provided in this part, consent to an adoption shall be required of the following:

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(5) The guardian of the person of an adoptee under the age of 18 years, if any there be, or of the person or persons having the custody of the adoptee, if any such person can be found, whenever the adoptee has no parent whose consent is required.

9 . We are shocked that the agency, which is responsible for representing the interests of the children, would refuse to entertain any evidence bearing on that determination which may be contrary to their own personal views. We are certain that in light of this opinion, the agency would consider the request of the grandparents for adoption with the objectivity that is applied to any other applicant.