In the Int. of: K.N.L. Apl of: L.B. a/k/a T.B.

[J-33-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
IN THE INTEREST OF K.N.L., A MINOR : No. 1 EAP 2022
:
: Appeal from the Judgment of
APPEAL OF: L.B. A/K/A T.B. : Superior Court entered on
: September 28, 2021 at No. 409 EDA
: 2021 affirming in part, vacating in
: part and remanded in part the Order
: dated January 26, 2021 in the Court
: of Common Pleas, Philadelphia
: County, Juvenile Division at No. CP-
: 51-AP-0000172-2017.
:
: ARGUED: May 18, 2022
OPINION
JUSTICE DOUGHERTY DECIDED: October 19, 2022
We 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, 23 Pa.C.S. §§2101-
2938. For the reasons that follow, we reverse and remand with instructions for a hearing
in the juvenile court de novo.
Background
History of the case
K.N.L. (the child), born in March of 2010, was adjudicated dependent and
committed to the custody of the Philadelphia Department of Human Services (DHS) in
2015; she has resided in various foster homes for seven years, since just after turning
five years old. The parental rights of the child’s biological parents were terminated
involuntarily on March 6, 2017, and on the same date, the juvenile court vacated the
custodial and visitation rights of the child’s former caregiver, R.B.P., who had been the
legal guardian at the time she entered foster care.1 With the child’s parents and guardian
removed as parties, custody of the child transferred to DHS, and further review of the
dependency matter proceeded on the juvenile court’s adoption docket.2 See 23 Pa.C.S.
§§2521(b) (decree of termination “shall award custody of the child to the agency or . . .
the petitioner in the . . .proceeding . . . for involuntary termination”) and (c) (agency
receiving custody “shall stand in loco parentis to the child” and “shall have [such] authority
. . . concerning the child as a natural parent could exercise”). In 2018, with the support
and consent of DHS, the child’s foster parent filed a report of intention to adopt and
petition to adopt the child, and completed all investigations and evaluations required to
finalize the adoption. Prior to the finalization, the child’s biological maternal aunt, D.M.,
filed a motion to intervene in the adoption matter as well as a petition to adopt the child.
Thereafter, the child was removed from the pre-adoptive foster home and the foster
parent requested to withdraw her pending adoption petition, which the court granted on
September 17, 2019.
1 R.B.P. appealed the juvenile court’s orders dated August 3, 2015 (adjudicating child
dependent and committing her to the legal custody of DHS); November 14, 2016
(suspending visits contingent upon a trauma therapist’s recommendation to reinstate
them); and March 6, 2017 (vacating guardianship and changing the permanency goal to
adoption). The Superior Court affirmed these decisions, and this Court denied allowance
of appeal. See In re K.L., 2767 EDA 2015, 2016 WL 2353033 (Pa. Super., May 4, 2016)
(unpublished memorandum); Interest of K.L., 3886 EDA 2016, 1185 EDA 2017, 2018 WL
1322572 (Pa. Super., Mar. 15, 2018) (unpublished memorandum), alloc. denied, 194
A.3d 119 (Pa. 2018) (Table).
2 In Philadelphia County, jurisdiction over adoptions is exercised through the juvenile
division of family court, rather than through the orphans’ court division as is the case in
all other counties. See PA. CONST. art. V, §16(q)(iii); 20 Pa.C.S. §§711, 713.
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Subsequently, appellant T.B.,3 who is the adult child of former guardian R.B.P.,
also sought to intervene in the proceeding to adopt the child. By motion to intervene filed
December 12, 2019, appellant claimed he had been a romantic partner and longtime
friend of the child’s biological mother, as well as a live-in parental caregiver for the child
from the time she was four days old until her removal from R.B.P.’s home, and has since
maintained contact and a strong parental bond with the child; these factors, he asserted,
demonstrated in loco parentis status4 and established his standing to intervene in the
adoption. See Motion to Intervene of [T].B., 12/12/2019, at 1-2. On January 3, 2020,
appellant also filed a petition to adopt the child.
The established facts indicate the child’s biological mother was incarcerated at the
time of her birth in March of 2010, and has been incarcerated for all but a few months of
the child’s life. Biological mother relinquished care and custody of the newborn to R.B.P.,
and a few days later appellant, who had also been in jail on the day the child was born,
joined his own mother and the child in R.B.P.’s home. Juvenile Court Op., 3/24/2021, at
2, 6, citing Testimony of [T].B., N.T. 1/26/2021 at 30. They resided and cared for the child
together for the next five years. Id., citing N.T. at 16. The child’s biological mother also
lived with them for approximately five months, after which she ultimately returned to
3 The initials “T.B.” reflect the functional name of appellant, also known by “L.B.”
corresponding to his legal name and sex assigned at birth. Throughout the record,
appellant is referenced using both male and female prefixes and pronouns, and
intermittently as R.B.P.’s “daughter.” Herein, we refer to appellant as “appellant” or “T.B.”
and by “he/him” pronouns.
4 Explained in greater detail infra, “in loco parentis,” meaning “in the place of a parent,”
refers to a person who “acts in place of a parent, either temporarily (as a schoolteacher
does) or indefinitely (as a stepparent does); a person who has assumed the obligations
of a parent without formally adopting the child.” Black’s Law Dictionary (11th ed. 2019)
(“person in loco parentis”). See generally Peters v. Costello, 891 A.2d 705, 710 (Pa.
2005) (explaining common law doctrine conferring standing based upon in loco parentis
status).
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prison. Id., citing N.T. at 18. The child identified R.B.P. as “Mama” and appellant as
“Dada.” See In re K.L., 2016 WL 2353033, at *1 n.2. The child’s removal from R.B.P.’s
home in 2015 occurred during DHS’s investigation of a child protective services (CPS)
report raising abuse allegations against R.B.P., which later included allegations against
appellant as well. Juvenile Court Op., 3/24/2021, at 1- 2, citing N.T. at 19, 21. Appellant
was not named as a party in the dependency petition, is not on the child’s birth certificate,
and has never been a legal guardian. Id., citing N.T. at 22-23.
The record5 further reveals the abuse allegations were unfounded.6 See In re K.L.,
2016 WL 2353033, at *1, 4. However, during the investigation, it became apparent the
five-year-old child had significant, aggressive and sexualized behavioral health issues
which, in the court’s view, R.B.P. was not adequately addressing. Id. The juvenile court,
5 In relation to the underlying dependency matter, the certified adoption court record
includes the full dependency court docket with entries containing texts of orders from each
court listing, the Superior Court’s memorandum affirming the adjudication of dependency,
and petitions and exhibits from the proceeding to terminate parental and custodial rights.
Additionally, the Superior Court’s non-precedential memoranda deciding R.B.P.’s
appeals in the dependency matter, see supra n.1, are official court records available to
the public, and are subject to judicial notice.
6 The allegations consisted of reports of inappropriate touching made by the child to
physicians treating her urinary tract infection. See Safety Plan dated 3/22/2015, [T].B.
Exhibit 1; Interest of K.L., 2018 WL 1322572, at *1. The resulting CPS investigation
involved several specialized medical, behavioral, and forensic evaluations of the child
which identified the child’s behavior as consistent with exposure to sexual trauma;
however, no conclusion was reached regarding the source, noting the child would state
“something is wrong with me” but could not pinpoint what, and would state either “Mama”
or “Dada” touched her, then during the same examination, recanted and disclosed
someone else had touched her, including the DHS investigator. Evaluation dated
7/17/2015. In its petition to terminate parental rights, DHS later averred the child’s
biological mother had at least six older children, all of whom had been removed from her
custody by DHS before the child’s birth for reasons unrelated to her incarceration, and
each child exhibited similar behavioral health concerns. Petition for Involuntary
Termination of Parental Rights, 2/14/2017, at 24-25 ¶¶(v)-(cc), ¶(ee), 27 ¶(nn). DHS also
averred substantiated prior investigations involving R.B.P. and the care of her biological
children, including appellant when he was a minor. Id. at 27 ¶(kk).
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following an off-the-record sidebar conversation and stipulation by counsel, stated on the
record he suspected appellant (who was not a party to the proceeding and does not
appear on the docket as present at the hearing) was responsible for “whatever happened”
and acknowledged testimony to the effect appellant no longer lived with R.B.P.7 Id. at *4.
The court ultimately adjudicated the child dependent under the Juvenile Act, 42 Pa.C.S.
§§6301-6375, based on a finding the child was without proper parental care and control.
See id. at *3-4; Interest of K.L, 2018 WL 1322572, at *2, 6; Dependency Docket entry
dated 8/3/2015; see also 42 Pa.C.S. §6302(1) (“Dependent child” is, inter alia, “without
proper parental care or control . . . necessary for his physical, mental, or emotional health,
or morals . . . [which] may be based upon evidence of conduct by the parent, guardian or
other custodian that places the health, safety or welfare of the child at risk[.]”).
From commencement of the dependency case until the juvenile court vacated her
custodial rights two years later, R.B.P. was named alongside the child’s biological parents
as a party to the dependency proceeding; as a result, she was appointed counsel,
attended hearings, exercised visitation and educational rights, and was engaged in the
family’s case plan as a reunification resource. The docket entries do not list appellant as
a person in attendance at any of the hearings. See Dependency Docket, entries dated
4/2/2015-11/14/2016.8 In seeking intervention, appellant averred he “has always been a
7Specifically, the court stated, “‘Do I believe something happened? Yes. Do I think it was
with you [R.B.P.]? No. Based upon the testimony, was that your daughter that lived with
you? . . . I suspect it was your daughter. . . . However, with whatever happened, this
young child has a lot of issues, now. So we have to deal with those issues before we send
her [back].’” In re K.L., 2016 WL 2353033, at *3-4, quoting Dependency Hearing N.T.
8/3/2015 at 8-9.
8There were stay-away orders entered on the dependency docket, beginning in May
2016, prohibiting appellant from contact with the child at her foster home and school. See
Dependency Court Docket, entries dated 5/11/2016, 7/27/2016, 11/14/2016.
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placement and visitation resource since the child has been deemed dependent.” Motion
to Intervene at 2.
Adoption court proceeding
The juvenile court scheduled a hearing on appellant’s motion to intervene for
January 26, 2021. Although there were no responsive motions or preliminary objections
to appellant’s motion, and the parties did not exchange exhibits or offers of proof, the child
advocate filed a pretrial memorandum the day before the hearing which included a list of
potential witnesses and exhibits, and a statement asserting opposition to appellant’s
standing. Child Advocate’s Pre-Trial Memorandum, 1/25/2021, at 6-8. Appellant was the
only witness at the hearing, which was virtual. His testimony proceeded without objection.
He explained his relationship to the child was as her previous caretaker and they both
identified him as her dad; he had been engaged to the child’s mother at one time, they
later planned to raise a child together, and because they were both in jail on the day the
child was born, he called his mother (R.B.P.) from prison and asked her to “get [his]
daughter,” which she did. N.T. at 30. Along with R.B.P., appellant took the child to
medical appointments, registered her for preschool, and took her there and back every
day. According to appellant, when the child was removed from the home, he presented
himself as a placement resource, but was ruled out and does not know why; he had some
contact with the child since her removal and has attempted to maintain a relationship with
her. Appellant agreed there had been allegations of abuse made against him as well as
his mother, but the petition to remove the child was filed against his mother and the child’s
mother only.
When asked why he did not file for legal custody, appellant testified he was
attempting to get parts of his criminal record expunged of charges acquired as a juvenile,
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though they were certified as adult charges.9 He provided the dates of those and
subsequent charges and answered questions about them; the court observed the felony
charges on appellant’s record, which could not be expunged, included theft charges and
were crimen falsi. The child advocate began to cross-examine appellant regarding the
child abuse allegations, however the court halted the line of questioning. Appellant then
testified he has since become a certified foster parent, which required him to submit to
clearances and background checks, and has had one foster child in his care for a year.
He also provided the court with a home investigation report and safety plan from an early
stage of DHS’s 2015 investigation, prior to the child’s (K.N.L.’s) removal, which listed
appellant and R.B.P. as the adult caregivers in the home, noted the child had made
allegations against R.B.P., and noted the child was safe in the home with appellant
assigned as the responsible party to supervise. See Safety Plan dated 3/22/2015, [T].B.
Exhibit 1.
No other evidence was provided. DHS and the child advocate stated their
objections to appellant’s standing. The child advocate argued there was a finding of
dependency for lack of parental care and control during the period appellant said he
provided care, which should preclude standing; in addition, the child advocate considered
there to be “no credible testimony or evidence [appellant] resided with the biological
mother of this child. Instead, there was credible testimony [appellant] resided with his
mother, who was a legal guardian of the child.” N.T. at 41-43. Counsel for DHS requested
an adverse credibility finding against appellant, and argued binding precedent and the
Adoption Act precluded standing. Specifically, DHS argued that in order to have standing,
9 The juvenile court noted that, “[w]hen testifying regarding the prior convictions,
[appellant] initially stated that the convictions were for juvenile charges. However,
[appellant] later testified [he] was convicted on several offenses, none of which were
juvenile, including: identity theft and unlawful taking by deception.” Juvenile Court Op.,
3/24/2021, at 2, citing N.T. at 23, 25.
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an adoption petitioner must have the consent of the agency under Section 2711 of the
Act, or be a blood relative under Section 2531(c) (which excuses certain family members
from filing a report of intent to adopt). Moreover, according to DHS, the “number one”
reason appellant did not have standing was because binding Superior Court precedent,
required a party in an adoption matter must “currently stand in loco parentis — not
previously stand in loco parentis — or obtain written consent [of the guardian].” N.T. at
44-46 (emphasis added), citing In re Adoption of A.M.T., 803 A.2d 203 (Pa. Super. 2002).
The juvenile court denied appellant’s motion to intervene for lack of standing.10
The court explained its decision was based on prerequisites for third party standing in
adoption matters, which dictated such standing exists only when specified by statute or
demonstrated by current in loco parentis status, i.e., where the third party is “currently”
assuming parental obligations in the place of a lawful parent. Juvenile Court Op.,
3/24/2021, at 4-5. The court relied on the Superior Court’s decisions in In re N.S., 845
A.2d 884, 886-87 (Pa. Super. 2004) (third party “must establish that she either currently
acts in loco parentis to the prospective adoptee or has obtained the written consent from
the guardian . . . [i]n order for a third party to pursue such adoption or visitation, the party
must have standing, and standing for a third party can exist only where the legislature
has specifically conferred it or where the party stands in loco parentis to the child.”)
(emphasis added), and Adoption of A.M.T., 803 A.2d at 208 n.4 (“[T]o have standing to
file a petition for adoption, a third party must either establish that he or she acts currently
in loco parentis to the prospective adoptee or has obtained the written consent from the
guardian of the adoptee.”) (emphasis added). Id. The court reasoned appellant therefore
needed either to have the written consent of DHS in compliance with the Adoption Act,
10On the record, the court stated, “I did have some issues with respect to the credibility,
but it wasn’t credibility that was the overwhelming decision.” N.T. 1/26/2021 at 46.
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see id., citing 23 Pa.C.S. §2711 (requiring consent to adopt by guardian or person having
custody of minor adoptee), or to show he currently acts in loco parentis, which, in the
court’s view, occurs where a third party and biological parent reside together as a family
unit, id., citing T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001), but is not established where
a third party acts “solely as a ‘caretaker’[,]” id., quoting D.G. v. D.B., 91 A.3d 706, 710-11
(Pa. Super 2014).
Citing appellant’s testimony as the record source for its factual findings, the
juvenile court viewed the following “factors” as demonstrating appellant could not
establish in loco parentis status. First, despite biological mother’s relinquishment of
custody to appellant’s mother, appellant never became a legal guardian of the child. Id.
at 5-6. Second, appellant was not named as a party to the dependency matter “as there
was no existing biological or legal relationship to the [c]hild at the time of her removal.”
Id. at 6. Third, appellant and biological mother “rarely resided together as a family unit,
except for a very brief period . . . [t]his demonstrates [a] family unit between biological
mother, [c]hild and [T].B. never existed.” Id. And, “[m]ost significantly,” the court
concluded appellant did not “currently” act in loco parentis because he had not resided
with the child in over five years, during which time she has been in the custody of DHS.
Id. at 5.
Appeal to the Superior Court
On appeal, a three-member panel of the Superior Court approved of the juvenile
court’s application of caselaw regarding in loco parentis status in relation to adoption
matters, and affirmed the denial of appellant’s motion to intervene on that basis. See
Interest of K.N.L., 409 EDA 2021, 2021 WL 4440535, at *14-17 (Pa. Super., Sept. 28,
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2021) (unpublished memorandum).11 Responding to appellant’s argument the juvenile
court had misapplied precedential authority, the panel analyzed In re Adoption of Hess,
608 A.2d 10 (Pa. 1992), in light of subsequent decisions of the Superior Court. See id.
at *15, quoting Hess, 608 A.2d at 15 (“child’s interests are best served when all those
who demonstrate an interest in his or her welfare are allowed to be heard . . . [t]herefore
. . . grandparents should have been welcomed by the agency to offer what information
they could in relation to their grandchildren’s best interests”). In Hess, this Court
considered the effect of an agency’s withheld consent on biological grandparents’
standing to intervene in their grandchildren’s adoption after parental rights had been
terminated. The Hess Court observed Section 2713 of the Adoption Act authorized the
adoption court, in its discretion, to dispense with certain consents otherwise required by
the Act, including the guardian’s; the Court noted an inquiry into the child’s best interests
was required to determine whether agency consent was unreasonably withheld, and
therefore irrelevant to the threshold issue of the grandparents’ standing. See Hess, 608
A.2d at 14, citing 23 Pa.C.S. §2713(2) (“[T]he court, in its discretion, may dispense with
consents other than that of the adoptee . . . when … the adoptee is under 18 years of age
and has no parent living whose consent is required.”).
Comparing the facts of Hess, the panel relied on Adoption of A.M.T. and In re N.S.,
to hold standing may be conferred in the absence of a guardian’s consent only where the
petitioner shared a close family relationship with the child, such as a grandparent. Interest
of K.N.L., 2021 WL 4440535, at *16-17. The A.M.T. panel held the guardian’s consent
11The Superior Court additionally disposed of several claims of abuse of discretion raised
by appellant, and reversed the juvenile court’s ex parte issuance of a stay-away order
prohibiting appellant’s contact with the child, which was based on allegations made by
the child advocate after the court dismissed appellant. See Interest of K.N.L., 2021 WL
4440535, at *3-13, 17-20. These aspects of the panel’s decision are not encompassed
within our grant of allocatur and we do not review them here.
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was not a prerequisite for standing where both of the competing prospective adoptive
families consisted of the children’s biological aunts and uncles, while also “‘recogniz[ing]
that the [c]ourts have clearly rejected attempts to extend the application of Hess to third
parties who do not have a familial relationship with the adoptees.’” Id. at *16, quoting
A.M.T., 803 A.3d at 207-09 (collecting intermediate appellate cases); see also id. at *17,
citing In re N.S., 845 A.2d at 886-87 (former foster parent lacked in loco parentis status
and standing to pursue visitation or adoption where, after termination of parental rights,
the agency had custody, stood in loco parentis, and did not consent).12
Issue and Standard of Review
We granted the petition for allowance of appeal filed by T.B. to consider whether
the juvenile court misinterpreted or misapplied the law when it denied appellant standing
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[.]” Interest of K.N.L., 270 A.3d 1103 (Pa. 2022) (per curiam).
Issues of standing generally raise pure questions of law for which we employ de
novo review of a trial court’s decision. Markham v. Wolf, 136 A.3d 134, 138 (Pa. 2016).
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. See
C.G. v. J.H., 172 A.3d 43, 54 (Pa. Super. 2017), aff’d, 193 A.3d 891 (Pa. 2018). Where
factual findings and credibility determinations are at issue, we will accept them insofar as
they are supported by the record. In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).
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
12The panel also addressed other authorities supplied by appellant, which included cases
and statutory provisions related to standing in child custody actions, and deemed them
inapposite to a determination regarding standing in an adoption proceeding. See id. at
*17.
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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. T.B. v. L.R.M., 786
A.2d 913, 916 (Pa. 2001); see In re Adoption of C.M., 255 A.3d 343, 358-59 (Pa. 2021).
Arguments
Appellant, T.B.
Appellant argues the juvenile court erred in holding in loco parentis status must be
“current” in order to establish standing to intervene in an agency-initiated adoption
proceeding. According to appellant, the court’s edict demands an intervenor to presently
act in the place of a parent at the time an action commences, and this premise is not only
an inappropriately inflexible standard for matters affecting a child’s best interests, but also
places an insurmountable burden on any prospective adoptive parent who previously
assumed parental duties for a child later placed in foster care.
Appellant relies on cases involving standing in private child custody actions
between former same-sex partners who had not (or legally could not have, at the time)
been legally married. He observes these decisions likened the role of the nonbiological
parents to one of step-parent, and viewed the key criteria for in loco parentis standing as
the assumption of the role of a parent, and a discharge of parental duties. See Appellant’s
Brief at 18-20, 24-25, 38. He argues this inquiry is not contingent upon “current” in loco
parentis status, and notes these issues arise only after a separation. Appellant asserts
this Court, in T.B. v. L.R.M., affirmed standing to seek partial custody five years after the
parties separated, and in C.G. v. J.H., further articulated “‘the relevant time frame to
determine whether a party stands in loco parentis is when the party developed the
relationship with the child[.]’” Appellant’s Brief at 17-19 & n.6, quoting C.G. v. J.H., 193
A.3d at 910. Instead of “currentness,” appellant asserts, “‘where the child has established
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strong psychological bonds with a person who although not a biological parent, has lived
with the child and provided care, nurture, and affection, assuming in the child’s eye a
stature like that of a parent . . . the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate fully the issue of whether that
relationship should be maintained[.]’” See id. at 16-21 & 18 n.6, citing and quoting T.B.
v. L.R.M., 786 A.2d at 917 (emphasis supplied by appellant); J.A.L. v. E.P.H., 682 A.2d
1314, 1319-21 (Pa. Super. 1996) (evidence biological parent’s child and former partner
were comembers of nontraditional family established in loco parentis standing to seek
custody; “a third party who has stood in loco parentis [possesses] a prima facie right
sufficient to grant standing”) (emphasis supplied by appellant). Appellant argues these
decisions caution against placing “‘overly technical and mechanistic’” applications of
standing principles before more important factors involving the child’s best interests,
including critical psychological bonds formed with parental caregivers during early
childhood. See id. at 17, 20-21, quoting J.A.L., 682 A.2d at 1318; T.B., 786 A.2d at 917.13
Recognizing standing in custody and visitation matters is generally limited to
parties expressly authorized via the custody statute, appellant observes the Adoption Act
provides “‘[a]ny individual may become an adopting parent.’” Id. at 36, quoting 23 Pa.C.S.
§2312. Appellant concedes the adoption court is not authorized to dispense with the
consent of the child, who is now twelve years old, but contends, under Hess, the adoption
court may forego consent of DHS if in the child’s best interests to do so. Appellant
emphasizes the issue of consents is one for the merits of the adoption petition, not
relevant to the threshold issue of standing, which does not consider success on the
13Subsequent to the decisions in J.A.L. v. E.P.H. and T.B. v. L.R.M., the General
Assembly has several times amended Section 5324 of the statute, which, since 2010,
has included “[a] person who stands in loco parentis to the child” among individuals who
“may file an action . . . for any form of physical custody or legal custody”. 23 Pa.C.S.
§5324; Act of Nov. 2010, P.L. 1106, No. 112 at §§5324-5325.
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merits. See id. at 22-24, citing Hess 608 A.2d at 14. Appellant argues a proper standing
inquiry — rather than the juvenile court’s restrictive ruling — ensures a party seeking
intervention in an adoption matter has a “‘substantial interest in the subject matter of the
litigation that must be direct and immediate[.]’” Id. at 13, quoting In re Adoption of J.E.F.,
902 A.2d 402, 412 (Pa. 2006). He contends he established such an interest by
demonstrating he assumed a parental role and discharged parental duties through his
unrefuted testimony relating to the care he provided for the first five years of the child’s
life — during which time, he asserts, strong, persisting parental bonds inevitably
developed between the two. Conceding in loco parentis status may end in some
circumstances, appellant argues it does so at the election of the third party or the child,
and in any event does not simply expire unless the parties understood the parent’s
delegation was only temporary. See id. at 25-28, citing 28 AM. JUR. 2D Proof of Facts
§545 (1981) (in loco parentis status is “susceptible of abrogation at will by either the
person thus standing or by the child”). In appellant’s view, just as a natural parent does
not become a stranger as a result of a separation or the child reaching the age of majority,
the same should hold for a third party who has acted in loco parentis to the child.
Appellant does not ask this Court to grant him standing, but rather requests remand for a
new hearing before the juvenile court in relation to the appropriate legal standard, which
in appellant’s view, examines both historical and current aspects of in loco parentis
conduct for the assumption of a parental role and discharge of parental duties. See id. at
40.
Appellees, DHS and Child Advocate
DHS and the child advocate (together, co-appellees) advance overlapping
arguments in opposition to appellant’s claim of standing; they view the juvenile court’s
decision as a proper analysis of the totality of circumstances, and assert appellant failed
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to meet his burden to “‘prove that a parent-like relationship has been forged through the
parties’ conduct[,]’” i.e., to persuade the court he ever assumed the legal duties and
obligations of a parent. Brief of DHS at 18, quoting J.A.L., 682 A.2d at 1321; Brief of Child
Advocate at 10. They argue the evidence instead demonstrates appellant never assumed
parental duties for the child, either before her placement into foster care or in the seven
years thereafter. In support of this perspective, co-appellees assert a litany of purported
omissions and failures by appellant, including, inter alia, his lack of mention on the child’s
birth certificate despite what they view as contrary testimony he and the child’s biological
mother planned to have and raise the child together, his failure to obtain any form of
custody prior to the child’s removal, and his failure to contest the removal, or to intervene
in the dependency matter or participate in any other way as a resource for the child. They
contend appellant’s only evidence of any bond or ongoing contact with the child is his
own “self-serving” testimony, which they argue the juvenile court discredited, and this
Court is bound by the trial court’s credibility determinations, as well as its factual findings
demonstrating appellant’s lack of standing. Brief of DHS at 22, citing Juvenile Court Op.,
3/24/2021, at 2, 5-6. The child advocate additionally argues appellant did not act in the
place of a parent to the child because the child was adjudicated dependent, i.e., found to
be lacking necessary parental care and control, as a result of the care appellant asserts
he was providing at the time the child was removed. Brief of Child Advocate at 30. Co-
appellees argue a proper challenge to the dependency findings and foster care placement
would have been via intervention in the dependency matter. See id.; Brief of DHS at 20.
Even if appellant had established he was a primary caregiver for the child prior to
her removal, co-appellees view standing to intervene in adoption cases as limited to
individuals having current custody or physical care of the child under Section 2531(a) of
the Adoption Act, or those with a close familial relationship recognized by the Act in
[J-33-2022] - 15
Section 2531(c). Brief of DHS at 16 & n.5, citing 23 Pa.C.S. §2531 (requiring “[e]very
person now having or hereafter receiving or retaining custody or physical care of any child
for the purpose or with the intention of adopting a child” to file a Report of Intention to
Adopt unless the adoptee is “the child, grandchild, stepchild, brother or sister of the whole
or half blood, or niece or nephew by blood, marriage or adoption”). Otherwise, in co-
appellees’ view, to establish standing, “the individual must ‘either currently act[] in loco
parentis to the prospective adoptee or ha[ve] obtained the written consent from the
guardian of the child’” pursuant to Section 2711(a)(5), and appellant here established
neither; they further recognize, under Hess and Section 2713, a court may dispense with
the Section 2711 guardian-consent requirement where it is found to be unreasonably
withheld, but refute the relevance of Section 2713 here, where there was no such finding.
Id., quoting In re N.S., 845 A.2d at 886; id. at 16 n.6, citing Hess, 608 A.2d at 14. DHS
further argues appellant “focuses too much” on a particular meaning of the word “current,”
and claims appellant cannot assert in loco parentis in defiance of DHS who, since parental
rights were terminated, currently stands in loco parentis under Section 2513 of the Act
and is the child’s effective parent. See id. at 25-26, citing T.B. v. L.R.M., 786 A.2d at 916-
17 (third party “can not place himself in loco parentis in defiance of the parents’ wishes
and the parent/child relationship”); see Brief of Child Advocate at 22.
Moreover, co-appellees contend appellant waited five years to assert any legal
interest in the child, resulting in now seven years of failure to perform any parental duties,
which demonstrates he abandoned any in loco parentis status he may have once had.
Brief of DHS at 19-20, citing In re Adoption of Wims, 685 A.2d 1034,1036-37 (Pa. Super.
1996) (former pre-adoptive foster parents, who previously had in loco parentis status, did
not contest children’s removal from home and waited five months to attempt to intervene,
no longer had standing in adoption); Brief of Child Advocate at 37-38, citing, inter alia, In
[J-33-2022] - 16
re C.R., 111 A.3d 179, 186 (Pa. Super. 2015) (former foster parent, who waited six
months and several permanency reviews to attempt intervention after foster children’s
removal, did not have standing to intervene in dependency matter). DHS contends
appellant was not entitled to “wait[] for a more convenient time for himself to seek
standing, without regard to [the c]hild’s needs and welfare.” Brief of DHS at 10. The child
advocate further argues appellant does not meet the requirements to intervene under
Rule of Civil Procedure 2327, which allows intervention for an individual who “could have
joined as an original party in the action” or where “the determination of such action may
affect any legally enforceable interest of such person.” Brief of Child Advocate at 14-16
quoting Pa.R.Civ.P. 2327(3), (4). Rule 2327 intervention, argue co-appellees, is available
only to those with consent, a close familial relationship, or current in loco parentis status
pursuant to Sections 2531 and 2711 of the Act, and appellant either never had such an
interest, or he abandoned it. Noting intervention under Rule 2329 should be refused
where “‘the petitioner has unduly delayed in making application for intervention or the
intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the
rights of the parties[,]’” the child advocate urges the Court to affirm the lower courts’
decisions because appellant’s attempt to intervene was not only unduly delayed, but
serves to further delay permanency for the child. Id. at 36, quoting Pa.R.Civ.P. 2329(3).
Appellee, D.M.
D.M., the child’s maternal aunt whose petition to adopt her was also pending
before the juvenile court, compactly observes DHS and the child advocate evade the
central issue of standing as they lack any suggestion appellant would not be aggrieved
by its denial. Brief of D.M. at 2, citing In re Adoption of B.E.W.G., 513 A.2d 1061, 1064
(Pa. Super. 1986) (“The core concept in standing questions is whether the person seeking
relief is adversely affected or aggrieved in any way by the matter which he seeks to
[J-33-2022] - 17
challenge through the judicial process.”) (quotation marks omitted). D.M. asserts the
child’s interests would best be served if she can be adopted by a relative or, alternatively,
someone with a developed familial bond, such as appellant. D.M. thus argues appellant
is aggrieved if denied the opportunity to intervene at this stage, before he can show if he
is qualified to adopt. Additionally, D.M. contends the case should be remanded to
determine whether DHS’s consent was unreasonably withheld.
Analysis
I. Petition for Adoption
A. Standing, generally
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. See
Trust Under Will of Ashton, 260 A.3d 81, 88 (Pa. 2021), citing Wm. Penn Parking Garage
v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975) (“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”). 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 re Adoption of J.E.F., 902 A.2d
402, 412 (Pa. 2006). 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. In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003).
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. See Hous. Auth. of Cnty. of
Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 941 (Pa. 1999) (properly-enacted
[J-33-2022] - 18
statute may enhance or diminish the scope of a party’s authority to proceed); see, e.g.,
Ken R. ex rel. C.R. v. Arthur Z., 682 A.2d 1267, 1270-71 (Pa. 1996) (former custody
statute provision authorized action to assure contact between parent and child, not child
and sibling, who lacked standing to pursue petition for visitation); In re C.L.P., 126 A.3d
985, 988 n.4, 990-91 (Pa. Super. 2015) (grandparents lacked standing under Juvenile
Act to intervene in dependency matter, but custody statute authorized grandparents
standing to pursue custody of grandchildren who were adjudicated dependent). Standing
is a threshold issue and must be resolved before proceeding to the merits of the
underlying action. C.G. v. J.H., 193 A.3d at 898. 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. Id.
B. The rule applied in this case
The decisions below, and the parties’ arguments, are framed by their conception
of a rule, derived from the Superior Court’s expressions in Adoption of A.M.T., 803 A.2d
at 208 n.4., and In re N.S., 845 A.2d at 886-87, which precludes standing to intervene in
an adoption proceeding for a child in the custody of an agency unless one of the following
criteria is met: (1) the legislature has specifically conferred standing for a third party, which
DHS urges is limited to current caregivers and certain biological family members
anticipated under Sections 2531(a) and (c) of the Adoption Act; (2) the prospective
adoptive parent seeking to intervene has obtained the consent of the agency to adopt
pursuant to Section 2711(a)(5); or (3) the intervenor currently stands in loco parentis to
the child. See Juvenile Court Op., 3/24/2021, at 5-6; see also 23 Pa.C.S. §§2531(a), (c),
2711(a)(5).
Preliminarily, we observe there exists no pronouncement of this Court endorsing
such a rule, or any of these criteria, as prerequisite to a non-foster-parent, third party’s
[J-33-2022] - 19
demonstration of standing to intervene in an action to adopt a child in the custody of an
agency. We nevertheless consider the principles underlying the forwarded rule in order
to determine whether the lower courts erred in applying it here.
1. Superior Court precedent
Twenty years ago in Adoption of A.M.T., a panel of the Superior Court applied
Hess to hold the refusal of otherwise-required consent from the children’s guardian, who
was a maternal aunt, did not defeat the standing of a paternal aunt and uncle to intervene
in an adoption matter commenced by the maternal family. See 803 A.2d at 209. In so
doing, the A.M.T. panel broke with what it deemed to be a trend of panel decisions
confining Hess to cases involving only grandparents’ petitions to adopt. See id. at 207-
08. Recognizing its holding might be viewed as a departure from precedent, the panel
supplied a footnote stating, “the general rule remains that, to have standing to file a
petition for adoption, a third party must either establish that he or she acts currently in
loco parentis to the prospective adoptee or has obtained the written consent from the
guardian of the adoptee.” Id. at 208 n.4 (emphasis added). Although A.M.T. cited several
prior intermediate appellate decisions as support, the particular origin of this “general rule”
restricting standing to a “currentness” requirement is not apparent.14 Nevertheless,
though it would not bind this Court in any event, the A.M.T. panel’s statement was not
essential to the decision’s otherwise consistent holding and is thus dicta that we decline
to recognize as the source of any requirement that in loco parentis status must be current
to establish standing.
Subsequently, the Superior Court addressed a former foster parent’s petitions for
both adoption and visitation in In re N.S. 845 A.2d at 886-87. Although co-appellees rely
14Curiously, although DHS relied on A.M.T. as the authority to support its successful
argument to the juvenile court that in loco status must be “not previous, but current,” DHS
does not repeat that argument here.
[J-33-2022] - 20
on In re N.S. (and other cases denying standing to former foster parents) for their position
a lapse in caregiving results in the loss of in loco parentis status, starkly different
considerations apply in such cases as a result of a foster parent’s unique duties and
agency relationships within the foster system. See Chester Cnty. Child. & Youth Servs.
v. Cunningham, 636 A.2d 1157, 1158-59 (Pa. Super. 1994) (nature of the limited
relationship of the foster parents to the children precludes standing to adopt absent
agency consent), aff’d, 656 A.2d 1346, 1350 (Pa. 1995) (plurality) (Opinion in Support of
Affirmance) (“status of foster parents is subordinate to that of the agency”); see also
Wims, 685 A.2d at 1037 (former foster parents who did not contest child’s removal from
their care and did not file intention to adopt until five months after the removal lost what
in loco parentis standing they formerly had to pursue adoption). Notwithstanding this
factual distinction, the In re N.S. panel’s brief analysis actually articulated two separate
rules: one regarding standing in adoption matters, which adopted verbatim the dicta in
A.M.T. described above, and the other invoking this Court’s decision in T.B. v. L.R.M., a
custody case, regarding visitation under the custody act, according to which “standing
for a third party can exist only where the legislature has specifically conferred it or where
the party stands in loco parentis to the child.” In re N.S. at 886-87, citing A.M.T., 803 A.2d
at 208 n.4; T.B. v. L.R.M., 786 A.2d at 916. Combining the two separate principles,
however, the juvenile court below set forth the latter statement, regarding custody, as a
rule applicable to this, an adoption case. See Juvenile Court Op., 3/24/2021, at 4 (“For a
third party to pursue adoption or visitation, the party must have standing, which can only
exist ‘where [the] legislature has specifically conferred it or where the party stands in loco
parentis to the child’.”), quoting In re N.S., 845 A.2d at 886-87.
2. Application of statutes
(a) Custody
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Where a statute prescribes the parties to an action, those individuals have standing
in the action, and in custody and visitation matters, we have articulated the custody
statute’s express provisions listing the “individuals who may file an action” for different
types of custody — as well as its prior versions providing only for awards “to either parent”
and “when grandparents may petition” — demonstrate the legislature’s intent to include
a narrow scope of litigants in these, typically private, family disputes. 23 Pa.C.S. §§5324-
5325; see, e.g., Ken R., 682 A.2d 1267; C.G. v. J.H., 193 A.3d at 892-93. We recognize
there is a particularly stringent test for standing in third-party suits in custody, which plays
a dual role, both to winnow out improper actions, and to prevent intrusion into fundamental
parental rights and privacy interests “by those who are merely strangers[.]” J.A.L., 682
A.2d at 1319. As we observed in T.B. v. L.R.M. — a case decided a decade before the
General Assembly included persons standing in loco parentis in the custody statute’s
standing provision — “courts generally find standing in third-party visitation and
custody cases only where the legislature specifically authorizes the cause of
action[;]” and yet, even absent a statutory underpinning at the time, a third party could
maintain an action for custody “where that party stands in loco parentis to the child.” T.B.
v. L.R.M., 786 A.2d at 916 (emphasis added; citations and quotations omitted); see Act
of Nov. 2010, P.L. 1106, No. 112 at §§5324-5325. Accordingly, courts must reinforce the
express statutory limitations to standing in private custody actions, albeit not so rigidly or
absolutely as to deny one acting in loco parentis an opportunity to be heard, and not
without regard for traditional standing principles. T.B. v. L.R.M., 786 A.2d at 919-20 (“A
determination of standing simply implies that the party has a substantial interest in the
subject matter of the litigation and that the interest is direct, immediate and not a remote
consequence.”); see also C.G. v. J.H., 193 A.3d at 898 (prior version of custody act’s
standing provision “limits the classes of persons deemed to have a substantial, direct,
[J-33-2022] - 22
and immediate interest in the custody of children by conferring standing only upon [a
parent, grandparent, and person who stands in loco parentis to the child] under certain
circumstances); Ken R., 682 A.2d at 1271 (“the legislature has allowed court interference
with the parents’ right to custody only in rare and exceptional circumstances”)
(emphasis added); J.A.L. v. E.P.H., 682 A.2d at 1320 (“[I]t is important to view the
standard in light of the purpose of standing principles generally: to ensure that actions are
brought only by those with a genuine, substantial interest” rather than “a rigid rule[.]”).
(b) Adoption
Unlike the custody statute’s explicit standing prerequisites, the Adoption Act, under
Subchapter B, titled “Parties,” and Section 2312, titled “Who may adopt,” provides, “Any
individual may become an adopting parent.” 23 Pa.C.S. §2312; see Hess, 608 A.2d at
13; Adoption of J.E.F., 902 A.2d at 409.
Notwithstanding this more 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. These include, inter alia: who may petition for termination of parental rights;
which reports, home studies, background checks, and other investigations are necessary;
whose consents are required and when they may be excused; strict pleading, exhibit, and
hearing requirements; the court’s directive in evaluating the petition; and the effects of the
decree. See 23 Pa.C.S. §§2501-2938. The adoption court has discretionary authority to
dispense with certain, otherwise necessary consents — including the guardian’s, but not
those of children over age twelve, see id. §2711(a)(1) & (5), §2713; it may order further
investigation at any time, see id. §2724(b); and the entry of a final decree is predicated
on the court’s satisfaction that the child’s needs and welfare, and all other requirements
of the Act, are met by the adoption, see id. §§2901, 2902(a).
[J-33-2022] - 23
In addition to the procedural role each statutory provision plays in advancing an
adoption petition toward permanency, they serve the critical broadscale function of
scrutinizing the safety, wellbeing, and viability of the resulting court-sanctioned,
permanent parental relationship at each step along the way, necessarily limiting a
petitioner’s eligibility to finalize an adoption. See J.E.F., 902 A.2d at 412 (“‘At all stages
of the proceedings, the best interest of the child is the paramount consideration.’”),
quoting Hess, 608 A.2d at 13, citing 23 Pa.C.S. §2902(a). It does not follow, however,
that the General Assembly intended for these quasi-substantive procedures to limit a
petitioner’s eligibility to be heard and attempt to demonstrate a genuine and substantial
interest in providing permanency for a child. We might find greater support for co-
appellees’ position these requirements should be extrapolated into an exclusive class of
people who may file for adoption, if the Act’s declaration of “who may adopt” included any
further qualification. However, the General Assembly did not circumscribe the action to
“any individual who meets the requirements under this Act.” The antecedent for each
qualification and requirement of the adoption proceeding is the statutory premise that
“[a]ny individual may become an adopting parent.” 23 Pa.C.S. §2312 (emphasis
added). And, on the occasions we have addressed the issue of standing in adoption
matters involving non-foster parents, we have invoked traditional notions of standing to
examine want of a substantial legal interest in an adoption matter. J.E.F., 902 A.2d at
411; see Hess, 608 A.2d at 13.
In Hess, where grandparents sought to intervene in an adoption, and in J.E.F.,
regarding adoption petitions of an aunt and uncle, we rejected an agency’s contention its
consent, required under Section 2711(a)(5) of the Act, was necessary to confer standing
to the children’s relatives who sought to intervene. See Hess, 608 A.2d at 12-13; J.E.F.,
902 A.2d at 404-05. As a result of the broad discretionary authority conferred to the
[J-33-2022] - 24
adoption court by Section 2713 to dispense with certain consents in the critical context of
the child’s best interests, 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. J.E.F., 902 A.2d at 404-05, 416; see Hess, 608 A.2d
at 13 (“[W]e must be guided by the specifications of the Adoption Act in making our
determination.”); see also 23 Pa.C.S. §§2711(c)(5), 2713. We also rejected the agency’s
view that the “unique status” of grandparents meant Hess applied to those relationships
only, such that an agency’s refusal of the consent to adopt required by Section 2711 could
still bar standing for everyone else. See id. at 404-05. Instead, with respect to the Section
2711 consent requirements, the J.E.F. Court 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.”15 J.E.F.,
15 Section 2713 “leaves it to the court to decide the relevance and importance of a
conferred, or a withheld, consent from a relevant party.” J.E.F., 902 at 411-12, 415, 417.
Even where the agency’s refusal to consent is examined by the court and deemed
reasonable, it does not deprive a party of standing, or bear on standing in any way, but
relates to the merits of the petition, which requires the verified pleading of certain consents
or the “basis upon which such consents are not required,” 23 Pa.C.S. §2701(7), and the
petitioner may seek leave of court to dispense with those consents within its discretionary
authority. Id. at 416-17 (“Nothing in the plain language of Section 2713(2)’s conferral of
broad discretionary power upon the court requires it to deem a custodial agency’s
‘reasonable’ refusal to consent to be conclusive of anything, much less the preliminary
question of standing. . . . [T]he Act does not contemplate that a failure to consent should
have that effect.”). In urging us to consider the juvenile court decision lacked a specific
finding that its consent was unreasonably withheld, DHS raises the identical argument as
the agency in J.E.F., which is baseless. See id. at 415 (“Section 2713(2) made clear that,
in the exercise of its duty to determine what was in the child’s best interests, ‘the court
has the final burden of determining whose consent is necessary’ and ‘[t]he agency’s
implicit assertion that its opinion will somehow control the outcome of the adoption is
therefore baseless.’”) (quoting Hess, 608 A.2d at 14); id. at 409, 416-17. We urge the
parties, and the adoption court on remand, to carefully review our decision in J.E.F.
[J-33-2022] - 25
902 A.2d at 411; see id. at 412, 416 (agency’s refusal to consent does not “deprive a
person who otherwise has a stake in the litigation standing to pursue that interest”).
Instead, the 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. Id. at 412, 416. 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.16
In both Hess and J.E.F., we also considered the role of Section 2531 of the Act,
regarding reports of intention to adopt, in this analysis. See 23 Pa.C.S. §2531. In addition
to listing the required content of the report, the section dictates who is required to file a
report and where, i.e., the child’s current custodial caregivers, in the court where the
adoption petition is filed, see §2531(a), and who is not, i.e., a parent, grandparent,
stepparent, brother, sister, aunt or uncle, see §2531(c). In Hess, we said Section 2531(c)
“illustrates the expectation,” without presumption or preference, these permanent
relationships might engender a legal interest in adopting a relative. Hess, 608 A.2d at 13.
16 J.E.F. did not address an adoption in which the child’s consents were necessary. See
J.E.F., 902 A.2d at 411-12. In this case, the child turned twelve years old while this matter
was pending; the parties agree her consent is now required under Section 2711(a)(1),
and does not fall within the court’s discretionary authority under Section 2713. See 23
Pa.C.S. §§2711(a)(1), 2713. The child advocate urges that we not require the child to
consider the proposition. However, the issue of whether the child’s required consent
(whether withheld or conferred) should impact standing to intervene in an adoption is not
our decision to make at this juncture, but for the adoption court on remand. While the
force of authority suggests all issues of consent in this context are substantive in relation
to the child’s best interests, we are confident in the juvenile court’s ability to curate
appropriate parameters for addressing complex issues with vulnerable children, if and
when they become warranted.
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Similarly, in J.E.F., the provision underscored such familial relationships may inhere a
substantial, direct, and immediate interest which surpasses the interests of ordinary
strangers. J.E.F., 902 A.2d at 414, 416. DHS’s bald assertion this provision exclusively
enumerates the whole class of individuals who may adopt, and therefore limits standing
to those individuals, is unpersuasive here. Foremost, like consents under Section 2711,
this provision, on its face, “never purports to speak to standing.” Id. at 411. Section 2531
does not provide parameters for anyone “who may” do anything, but rather mandates
what all pre-adoptive parents currently caring for children “shall” do — i.e., report their
intent to adopt, unless excused by an excepted familial relation. This contrasts
significantly with Section 2312, which relates to “parties” in an adoption proceeding and
expressly provides “who may adopt” — i.e., “any individual.” 23 Pa.C.S. §§2312, 2531(a),
(c). Thus, as with the Act’s consent requirements under Section 2711, we do not view
Section 2531 to place a limit on standing. Instead, the provision illustrates certain
relationships are expected to have permanency, by familial relation or formal declaration,
which facially demonstrate a substantial, durational interest in the child.
Accordingly, “nothing in the 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.” J.E.F., 902 A.2d
at 416. 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[,]’ . . . [t]here 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. Id. at 412-13 & n.10, quoting T.B. v. L.R.M., 786 A.2d at 916. In
these latter situations, the appropriate parameters of standing are not drawn from the
statute’s provisions, but from traditional jurisprudential standing principles. See id. at 413,
[J-33-2022] - 27
415-17 (“[U]nder both the Act and traditional notions of standing, it is not the consent of
the [a]gency that determines the preliminary question of standing to be heard under the
Adoption Act, but the existence of a substantial, direct, and immediate interest in the
proceeding. . . . We do not doubt that traditional standing principles would warrant a denial
of standing to a party in an adoption matter, no less than in other cases, where such an
interest was lacking.”). Moreover, the petitioning party must still meet the requirements
of the Act, and “standing does not mean that they will, or should” prevail in subsequent
merits determinations, i.e., substantive evaluations of the child’s best interests. Id. at 416,
418.
Thus, one who seeks to adopt a child in the custody of an agency must
demonstrate a substantial, direct, and immediate interest in the subject matter of the
litigation — that is, a “genuine, and not merely a theoretical,” interest in assuming the role
of a permanent parent who best meets the child’s needs and welfare — which surpasses
such an interest of ordinary, unrelated strangers. J.A.L. v. E.P.H., 682 A.2d at 1318; see
J.E.F., 902 A.2d at 414. The Adoption Act, through its Sections 2531 and 2711 (and
potentially other provisions17) supplies certain criteria which, if established, carry with
them an expectation of permanency — sufficient in most, if not all, instances to
demonstrate a genuine and substantial interest on the face of an adoption petition. There
may be other circumstances giving rise to this interest, and we do not foreclose the
opportunity for a petitioner in such an instance to be heard in the substantive matter of
the child’s best interests.
We proceed to examine whether the in loco parentis relationship asserted by
appellant presents one such opportunity.
17 See, e.g., 23 Pa.C.S. §2512(a)(3) (authorizing standing to file a petition for involuntary
termination of parental rights by “[t]he individual having custody or standing in loco
parentis to the child and who has filed a report of intention to adopt”).
[J-33-2022] - 28
II. Appellant’s Motion to Intervene
A. Intervention
A nonparty who seeks to intervene in an adoption matter 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. Hess, 608 A.2d at 12; Pa.R.Civ.P. 2327. 18
In Hess, the Court found such a legally enforceable interest under the custody
statute’s provisions, both allowing grandparents to seek custody and visitation under
certain circumstances, and terminating any rights conferred thereunder if and when the
child is adopted. See Hess, 608 A.2d at 12-13, citing 23 §§5313, 5314 (repealed).
Regardless of whether the grandparents could actually have prevailed under the custody
law (and the Court determined they could not), absent any other statutory provision to the
contrary, the Hess Court considered this to mean grandparents could foreseeably
18 Justice Donohue states the “relevant intervention factor” in Hess was Pa.R.Civ.P
2327(3), which provides, “[a]t any time during the pendency of an action, a person not a
party thereto shall be permitted to intervene therein” if “such person could have joined as
an original party in the action or could have been joined therein.” Concurring Opinion at
2 n.2, citing Hess, 608 A.2d at 12. Although the application of this particular mechanism
was not made clear in Hess, the Court further developed its reasoning consistent with
Rule 2723(4) and the concept it reinforces, which allows intervention where the result
“may affect any legally enforceable interest” of the proposed intervenor that is not
otherwise protected by another party to the litigation, “whether or not such person may
be bound by a judgment in the action.” Pa.R.Civ.P. 2723(4); Hess, 608 A.2d at 13-15;
see also Bily v. Bd. of Prop. Assm’t of Allegheny Cty, 44 A.2d 250, 251 (Pa. 1945) (“The
right of intervention should be accorded to any one . . . provided that his rights will be
substantially affected by the direct legal operation and effect of the decision, and provided
also that it is reasonably necessary for him to safeguard an interest of his own which no
other party on the record is interested in protecting.”). We note the Rules are procedural
in nature, and do not abrogate or otherwise change a party’s substantive right to intervene
under certain circumstances. See In re Templeton, 159 A.2d 725, 729 (Pa. 1960)
(procedural rules “not to be exalted to the status of substantive objectives”) (internal
quotes and citations omitted).
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continue to seek enforcement of custodial rights after parents’ rights have been
terminated, up until the entry of an adoption decree. See id.; see also A.M.T., 803 A.2d
at 206-08. And because the Adoption Act identified grandparents as relatives excused
from filing a report of their intent to adopt under Section 2531(c), the Act anticipated
grandparents might be expected to adopt, and thus had a legal interest that would be
affected by, or could be enforced through, intervention in the adoption proceedings. See
id.The custody statute has been updated several times since Hess was decided.
Though grandparents’ rights remain conditioned on certain circumstances, the statute
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.” 23 Pa.C.S. §§5324(1), 5326. As well, the
Adoption Act anticipates individuals who become custodial caregivers of children through
an in loco parentis relationship might pursue adoption: Section 2512 of the Act affords
“the individual having custody or standing in loco parentis to the child” with standing to
pursue involuntary termination of the parents’ rights, and thereby propel the adoption
process forward, if he or she “has filed a report of intention to adopt required by section
2531[.]” 23 Pa.C.S. §2512(a)(3).19 Consistent with our analysis supra, we do not interpret
Section 2512 (standing to terminate parental rights) as a delimiter on standing to petition
for adoption, and the extant custody statute further makes clear, if appellant ever had any
right to assert in loco parentis standing in a custody matter, it would be extinguished upon
19Whether the Adoption Act, by virtue of Section 2512, can be read to unequivocally
anticipate adoption by caregivers who previously stood in loco parentis to the child is
beyond our reach in this case — the parties have not discussed the role of this provision,
and unlike Section 5324 of the custody statute, Section 2512 of the Adoption Act
additionally conditions in loco parentis standing on a formal declaration of intent to adopt,
which would facially demonstrate standing to adopt in any event. Compare 23 Pa.C.S.
§2512(a)(3) with id. §5324(1).
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entry of an adoption decree. See 23 Pa.C.S. §5326; see also E.T.S. v. S.L.H., 54 A.3d
880 (Pa. Super. 2012) (under §5326, former live-in romantic partner of children’s custodial
aunt lost in loco parentis right to seek custody of children when aunt adopted the children).
Thus, consistent with our analysis in Hess, if appellant establishes an in loco parentis
status, he establishes an interest sufficient to intervene. Accord Hess, 608 A.2d at 12-
13; A.M.T., 803 A.2d at 206-08.
We turn our review to the common law doctrine of in loco parentis.
B. Standing In Loco Parentis
In loco parentis is a legal status, and proof of essential facts is required to support
a conclusion that such a relationship exists. T.B. v. L.R.M., 786 A.2d at 916, citing
Kransky v. Glen Alden Coal Co., 47 A.2d 645, 646 (Pa. 1946). “The phrase ‘in loco
parentis’ refers to a person who puts oneself in the situation of a lawful parent by
assuming the obligations incident to the parental relationship without going through the
formality of a legal adoption.” Id. Long before our custody statute granted standing based
upon the status, in loco parentis was recognized as the sole common law exception to
the rule restricting custody and visitation actions to the legal parents and grandparents
expressly authorized by statute. See id. Our child custody jurisprudence provides much
of the context for the doctrine, and though adaptable, warrants due consideration of the
circumstances in which different types of cases arise; unlike custody disputes between
arguably fit parents, agency-initiated adoption matters involve especially vulnerable
children in the custody of an entity, and the rights of their natural parents no longer exist.
The foundational elements of in loco parentis status, upon which all other
considerations may rise or fall, include the assumption of a parental role, and the
discharge of parental duties. See C.G. v. J.H., 193 A.3d at 907-08, 910; T.B. v. L.R.M.,
786 A.2d at 916-17, 919-20. The assumption of a parental role must originate with a legal
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parent’s assent, whether through encouragement or acquiescence. See C.G. v. J.H., 193
A.3d at 907-08, quoting T.B. v. L.R.M., 786 A.2d at 907 (a third party in this type of
relationship cannot “place himself in loco parentis in defiance of the parents’ wishes and
the parent/child relationship”). In cases where natural parents have relinquished care or
are otherwise absent, the Superior Court has articulated a slightly more flexible iteration
of this principle: although potentially in defiance of a parent’s wishes, an assumption of
parental duties may be achieved through “some legally cognizable,” i.e., non-illicit means.
See, e.g., In re C.M.S., 884 A.2d 1284, 1288-89 (Pa. Super. 2005), appeal denied, 897
A.2d 1183 (Pa. 2006). Furthermore, contrary to the present position of DHS, any
purported “defiance” of a parent’s wishes — as it relates to a third party’s in loco parentis
status — corresponds to the formation of the parent-child relationship with the third party,
not its continuation. See, e.g., A.J.B. v. A.G.B., 180 A.3d 1263, 1277-79 (Pa. Super.
2018) (biological custodial parent could not, in hindsight, expunge ex-spouse,
nonbiological parent’s relationship with child once paternity was known; although “in loco
parentis status cannot be in defiance of the natural parents' wishes and the parent-child
relationship . . . such defiance must have been to the creation of a parent-child bond with
the third party, rather than to the continuation of the relationship”), appeal denied, 196
A.3d 1016 (Pa. 2018). Rather, “the relevant time frame to determine whether a party
stands in loco parentis is when the party developed the relationship with the child with the
acquiescence or encouragement of the natural parent.” C.G. v. J.H., 193 A.3d at 910.
In child custody disputes raising challenges to in loco status — most often involving
a natural parent and a nonbiological former spouse or partner — courts examine the
parties’ conduct for objective evidence of an assumed parental role and duties. One of
the most obvious demonstrations of an in loco parentis relationship is where the natural
parent and third party lived together with child as a “family unit” while co-parenting the
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child. See T.B. v. L.R.M., 786 A.2d at 919. This is not a restrictive rubric, and family is
an evolving concept. See C.G. v. J.H., 193 A.3d at 912-13 (Dougherty, J., concurring).
The nature of the relationship between a natural parent and third party to each other
“has no legal significance to the determination of whether [the third party] stands in loco
parentis to [the child].” T.B. v. L.R.M., 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.”). What is significant, though, is the third party’s relationship
to the child, and how that relationship was forged, i.e., through assented assumption of
a position more significant to the child than a frequent caretaker. See id.; see also In re
C.B., 861 A.2d 287, 296 (Pa. Super. 2004) (important aspect of in loco parentis doctrine
is whether the third party lived with the child in a family setting “irrespective of its traditional
or nontraditional composition”).
In J.A.L. v. E.P.H., the seminal Superior Court decision reached in 1996, several
years prior to statutory incorporation of in loco parentis status in custody actions and
pronouncements of the rights of same-sex couples to marry and adopt, the court
considered the significance of the strong psychological bonds infants form with the
caregivers who live with them during early childhood, even if they were not the child’s
primary caregivers. See 682 A.2d at 1320. The court observed that, with respect to the
nonbiological parent’s standing, the presumption against third parties in custody disputes
(in favor of the biological family’s privacy and autonomy):
must give way where the child has established strong psychological bonds
with a person who, although not a biological parent, has lived with the child
and provided care, nurture, and affection, assuming in the child’s eye a
stature like that of a parent. Where such a relationship is shown, our courts
recognize that the child’s best interest requires that the third party be
granted standing so as to have the opportunity to litigate fully the issue of
whether that relationship should be maintained even over a natural
parent’s objections.
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Id. Accordingly, the J.A.L. court held, where the nonbiological parent lived with the child
for the first ten months of its life and acted as a parenting partner to the child’s mother,
the opportunity for bonding to occur was established, and the young child’s recognition of
the nonbiological parent as a significant person in her life demonstrated “a constant,
sincere interest in the child” sufficient to confer in loco parentis status. Id. at 1322.
We have also recognized, however, not all strong psychological bonds are positive
ones. See, e.g., In re T.S.M., 71 A.3d 251, 271 (Pa. 2013) (children’s needs and welfare
necessitated termination of parental rights despite strong but damaging bonds). More
recently, in C.G. v. J.H., we addressed the legal significance of a bond in the context of
an in loco parentis relationship, and concluded its consideration for the purpose of a
standing analysis must be secondary to, and result from, a demonstrated assumption of
a parental role and discharge of parental duties. See 193 A.3d at 909-10 (bonding
evaluation not required where evidence did not demonstrate assumption and discharge
of parental duties). In this regard, the import of the J.A.L. decision is not to introduce an
examination of bonding into a standing inquiry, but rather to recognize a bond exists with
a nonbiological caregiver just as with the natural parent where the caregiving role is
assumed during a child’s infancy and early childhood; that is, where one “has lived with
the child and provided care, nurture, and affection, assuming in the child’s eye a stature
like that of a parent” since the child’s birth, the primacy of the resulting bond warrants a
prima facie right to in loco parentis status to be heard regarding the substance of the
child’s best interests. J.A.L. v. E.P.H., 682 A.2d at 1319-22.
In a similar fashion, consideration of the parties’ post-separation conduct in
custody matters is also secondary to the demonstration of an assumed parental role and
discharge of parental duties, relevant insofar as it sheds light on whether the person
seeking standing was ever viewed as a parental figure. See C.G. v. J.H., 193 A.3d at
[J-33-2022] - 34
910-11. Although rendering all post-separation conduct irrelevant in such standing
disputes would, in some circumstances, ignore the purposeful withholding of access to
the child by the legally-recognized parent, in other circumstances it could afford third
parties a greater advantage than a natural or adoptive parent who had otherwise
demonstrated a relinquishment of parental claims to a child. Id. at 910-11 & n.17; see id.
at 917-18 (Wecht, J. concurring) (“If there is evidence that the third party has assumed
parental status and discharged parental duties during the relationship, and if there is
evidence that the custodial parent purposefully withheld the child, then post-separation
conduct should not be considered for purposes of denying standing to the third party. This
Court should not countenance even the suggestion that a parent unilaterally can erase
from a child’s life a third party who, in all material respects, acted as a parent.”).
Notably, a substantial body of Superior Court jurisprudence clearly recognizes
“third parties who are not designated foster parents may seek adoption when they can
establish that they stand in loco parentis to the child.” Cunningham, 636 A.2d at 1159,
aff’d, 656 A.2d at 1349, citing In re Adoption of J.M.E., 610 A.2d 995 (Pa. Super. 1992)
(couple who raised child for four years since infancy had standing to file termination action
based on in loco parentis status, despite lack of legal custody), appeal denied, 618 A.2d
402 (Pa. 1992). These cases dovetail with one prominent aspect of decisions regarding
foster-parent standing: they articulate a critical distinction between prospective-adoptive
foster parents, with whom all parties expect the relationship to be permanent from its
inception — so the prospective-adoptive foster parents have in loco parentis status —
and all other foster parents, whose relationship to the child all parties expect to be
temporary and subordinate to the agency’s reunification efforts — and who typically do
not have in loco parentis status. See Mitch v. Bucks Cnty. Child. & Youth Social Serv.
Agency, 556 A.2d 419, 422-23 (Pa. Super. 1989) (“Because prospective adoptive
[J-33-2022] - 35
parents, unlike foster parents, suffer a direct and substantial injury when an agency
removes a child from them, we see no reason in law or policy why we should limit their
standing to sue[.]”), appeals denied, 571 A.2d 383, 384 (Pa. 1989). In this vein, third
parties who are not foster parents may likewise acquire in loco parentis status when they
accept responsibility to care for a child in a parental role and the expectation of all parties
involved is that the relationship forged will be a permanent one. See In re B.L.J., Jr., 938
A.2d. 1068, 1073-74 (Pa. Super. 2007) (where terminally-ill grandmother who stood in
loco parentis of five-year-old child found and placed child with adoptive family before she
died, grandmother and adoptive parents had expectation of permanency, and adoptive
parents stood in loco parentis in the termination proceeding); Adoption of J.M.E., 610
A.2d at 998 (where infant’s aunt, who was his legal guardian, gave care of child to married
caregivers to raise “until he’s grown,” caregivers had expectation of permanency and
stood in loco parentis to pursue termination of parental rights and adoption); 23 Pa.C.S.
§2512(a)(3). Consequently, although the examination of in loco parentis standing to
initiate a termination of parental rights proceeding under Section 2512 is necessarily
narrower than standing to pursue an adoption, we conclude the expectation of
permanency during the period a third party legitimately assumed a parental role is
nonetheless an important consideration for authenticating an in loco parentis relationship.
Moreover, when a would-be party’s in loco parentis status is challenged, the inquiry
is necessarily fact-intensive and case-specific. C.G. v J.H., 193 A.3d at 911. Where the
status is established, however, “[t]he rights and liabilities arising out of an in loco parentis
relationship are, as the words imply, exactly the same as between parent and child.”
Id. at 907 (emphasis added), quoting T.B. v. L.R.M., 786 A.2d at 917; Peters, 891 A.2d
at 710 (same); see id. at 910.
With these considerations in mind, we return to the record before us.
[J-33-2022] - 36
C. The Present Appeal
We accepted review to determine whether the juvenile court erred when it denied
appellant standing — based on in loco parentis status — to intervene in the adoption of
the child. Applying the foregoing analysis to the present appeal, we conclude the juvenile
court did err. The court interpreted and applied relevant Adoption Act provisions strictly,
as principles of limitation on standing in an adoption action, in contravention of 23 Pa.C.S.
§2312, J.E.F., and Hess, rather than assessing whether appellant demonstrated a
genuine and substantial interest in having a formal, permanent parental role in the child’s
life as a result of the in loco parentis status he pleaded. Appellant’s motion to intervene
warranted an examination of whether he assumed a parental role legitimately, whether
parental duties were discharged during the relevant time, and whether there was an
expectation of permanency in the relationship, or at least “a constant, sincere interest in
the child,” sufficient to authenticate in loco parentis status. J.A.L. v. E.P.H., 682 A.2d at
1322.
To the extent the juvenile court’s assessment can be read as a “totality of the
circumstances” application of these principles, we review whether, as co-appellees
contend, the record in this case supports such a conclusion. Initially, co-appellees’
assertion appellant “never” assumed any parental duties or obligations is undermined by
the juvenile court’s express factual finding that “[a]fter Child’s birth, Child was in the care
of [T].B.’s mother and [T].B. for approximately five years.” Juvenile Court Op., 3/24/2021,
at 2. Insofar as co-appellees assert the juvenile court assessed appellant’s testimony
and determined it to be not credible, our review reveals the court neither granted DHS’s
request for an adverse credibility finding, nor considered credibility to be dispositive.
Regarding the court’s statement from the bench that “it wasn’t credibility that was the
overwhelming decision,” N.T. at 46, in its ensuing opinion pursuant to the underlying
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appeal, the court noted only a purported discrepancy in appellant’s testimony regarding
“juvenile charges.” Juvenile Court Op., 3/24/2021, at 2, citing N.T. at 23, 25; see supra
n.9. According to the transcript, appellant initially referred to the charges as “past juvenile
charges that I was certified for” and subsequently stated several times these were not
“juvenile charges” but were certified as adult charges when he was a minor, and he also
obtained other charges as an adult. N.T. at 23-25; see id. at 26-29, 34-35. Also salient
in this regard is the court’s citation to appellant’s testimony — to which there were no
objections or rebuttal evidence provided — as the only evidentiary basis for each and
every one of its factual findings. See Juvenile Court Op., 3/24/2021, at 2, 5-6. To the
extent the purported discrepancy identified by the juvenile court could be construed as
the basis of an adverse credibility determination, no discrepancy is evident, and no other
basis for such an inference is supported by the record.20
20 Similarly, co-appellees stretch the absence of evidence in the record to fault appellant’s
purported failure to intervene in the underlying dependency matter, while simultaneously
validating the juvenile court’s contrary finding appellant was not named as a party in the
dependency case because he lacked a biological or legal relationship to the child. The
Juvenile Act provides no clear definition of who is or is not a party, while its proceedings
are generally closed to nonparties. See In re L.J., 691 A.2d 520, 526 (Pa. Super. 1997)
(“[T]he fact patterns of dependency cases are too variable to permit us to establish one
definition [of ‘party’] that would be appropriate for all cases.”) (citation and quotation marks
omitted). Intervention is considered voluntary, and, without the benefit of this
consideration below, we question the extent to which a person’s non-election to intervene,
in a case where the allegations of insufficient care of a child were not filed with respect to
him, can then be binding on him. See Bannard v. N.Y. State Nat. Gas Corp., 172 A.2d
306, 312 (Pa. 1961) (“A party who may be affected by litigation or who may have an
interest therein is not required to intervene and, if he does not, a determination in the
action is not binding upon him.”). There are substantial safeguards in place to notify,
summons, provide legal representation, and otherwise ensure the ability of identifiable
legal parents and guardians to participate in dependency proceedings, but it is unclear
how someone in appellant’s shoes could be charged with the knowledge he could
participate in the matter, and had the obligation to do so. Were we to accept such an
inference from this record, we could likewise infer DHS did not file a dependency petition
with regard to appellant because it did not identify him as one whose caregiving ability
was lacking, or, that it failed to make reasonable efforts to reunify the child with the
caregiver she recognized as “Dada,” or to otherwise prioritize her placement with kin. See
[J-33-2022] - 38
Likewise, co-appellees’ list of purported duties appellant “never” performed is
neither relevant here nor supported by the record; an individual’s appearance on a child’s
birth certificate or acquisition of legal guardianship may be evidentiary in some contexts,
but they are by no means dispositive as to a caregiving role, and are formalities which
would obviate an in loco parentis status in the first instance. In addition, the juvenile
court’s finding a family unit “never existed” — because the child’s otherwise-incarcerated
biological mother lived with them for only a brief time — ignores relevant record evidence
tending to show appellant interacted with R.B.P. and the child as a family unit, and he
may have provided the sort of day-to-day care and decision-making for the child sufficient
to demonstrate he assumed a co-parenting role and a discharge of parental duties while
living with the child since birth until age five. Co-appellees observe appellant produced
no record evidence of a bond or post-separation contact with the child, but as we have
explained, such evidence is of little consequence to a standing inquiry, especially where
the relevant time period involves the rearing of a small child since birth.
Finally, though we have disposed of the notion in loco parentis status for purposes
of standing to intervene in an adoption proceeding must be “current” — as in a present
caregiving capacity — we are nevertheless faced with the conundrum of appellant’s five-
year absence, reflecting at least half of the child’s life. Appellant concedes an in loco
67 Pa.C.S. §§3102, 3103, 3105 (family finding required; “county agency shall give first
consideration to placement with relatives or kin” defined as “[a]n individual with a
significant, positive relationship with the child or family”); Pa.R.J.C.P. 1149 (court “shall
place its determinations on the record as to whether the county agency has reasonably
engaged in family finding”). For good reason, we decline to make these inferences. But
we observe that whatever pertinent information regarding appellant may have emerged
during the course of the dependency proceeding is well within the knowledge and reach
of DHS and the child advocate (who chose to cross-examine appellant rather than offer
any evidence to the court) and well outside the reach of appellant (who was not a party).
To the extent it might serve as a basis to disqualify any interest asserted by appellant, the
record lacks both competent evidence and legal support for its inclusion in our analysis.
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parentis status can be terminated. Co-appellants contend, at bottom, it’s simply been too
long since appellant has performed a parental duty. DHS, arguing appellant was not
entitled to “wait for a more convenient time for himself to seek standing, without regard to
the child’s needs and welfare,” underscores a useful marker, tacitly invoking the Adoption
Act’s grounds for involuntarily terminating a parent’s rights based on parental
abandonment of duties. Brief of DHS at 10. See 23 Pa.C.S. §2511(a)(1); Adoption of
C.M., 255 A.3d at 364 (“Parental rights are not preserved by waiting for a more suitable
or convenient time to perform one’s parental responsibilities while others provide the child
with his or her physical and emotional needs.”). But we reiterate: the rights and liabilities
arising out of an in loco parentis relationship are exactly the same as between parent and
child. Parental rights, even simply custodial ones, typically do not expire merely by the
passage of time; indeed, Section 5236 indicates an in loco parentis party’s right to pursue
custody terminates potentially only upon adoption. 23 Pa.C.S. §5236. Our thinking on
this point aligns with the principle that whether a parent’s rights should be terminated
against their will as a result of abandonment of duties requires due process, notice, an
evidentiary hearing, and, substantively, consideration of the reason for the absence;
properly exercised, a termination of parental rights is not warranted for circumstances
beyond a parent’s control such as where a custodial parent prevents access to the child,
or the “mere showing” a party “could conceivably have pursued legal action more
promptly[.]” See Adoption of C.M., 255 A.3d at 364-65, quoting Adoption of S.H., 383
A.2d 529, 533 (Pa. 1978).
We do not, at this juncture, suggest the full force of a termination of parental rights
proceeding is necessary to oppose standing in appellant’s case. Nor do we foreclose on
any possibilities for resolution of these issues not presently raised. However, the record
before us says too little about too much, while co-appellees infer too much about too little;
[J-33-2022] - 40
thus we remand to the adoption court to consider appellant’s standing anew in light of the
proper standards. Where an assumption of a parental role and discharge of parental
duties in the past by appellant is evident, the reasons provided for periods of absence
and whether access to the child has been fairly and legitimately withheld by the custodial
entity are relevant considerations for examining the authenticity of appellant’s expectation
or interest in permanency.21
Conclusion
Accordingly, we hold the juvenile court applied an incorrect analysis of appellant’s
standing to intervene in an adoption based on his asserted in loco parentis status, and
therefore misapplied the law. 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.
An individual’s previously-held in loco parentis status may, in a particular
circumstance, demonstrate this requisite interest and allow the party to be heard with
regard to the substance of an adoption matter wherein the paramount consideration is
the child’s best interest. In such a case, the individual asserting in loco parentis status
must demonstrate a legitimately-acquired assumption of the parental role, and a
discharge of parental duties. Important to this inquiry in the context of an adoption is
whether the in loco parentis relationship authenticates an expectation of permanency, or
a sincere and firm commitment to performing a non-temporary parental role in the life of
21These considerations comport with guidelines governing intervention set forth in our
Rules of Civil Procedure, which are construed liberally to secure a just resolution, and
condition refusal of intervention upon the absence of a reasonable excuse under the
particular factual circumstances evident to the trial court. See Pa.R.Civ.P. 2329; Esso
Standard Oil Co. v. Taylor, 159 A.2d 692, 695-97 (Pa. 1960).
[J-33-2022] - 41
the child. The adoption court’s review is not limited to these considerations, but it must,
in all cases, determine whether the evidence demonstrates the assumption of a parental
role and discharge of parental duties.22 In viewing whether a previously-existing in loco
22 For the adoption court’s consideration on remand, we make two observations. First,
standing is an issue that halts justiciability of an action on its merits; as a consequence,
challenges must be raised at the soonest possible opportunity and may be waived if not
promptly raised. See Erie Indem. Co. v. Coal Operators Cas. Co., 272 A.2d 465, 467
(Pa. 1971) (in civil litigation, issue of capacity to sue is waived unless specifically raised
in preliminary objection or answer); In re Est. of Brown, 30 A.3d 1200, 1204 (Pa. Super.
2011) (on appeal from orphans’ court, issue of standing may not be raised sua sponte,
but may be waived by a party “if not objected to at the earliest possible opportunity”).
Generally, a challenge to standing is properly pleaded by way of preliminary objection or
similarly-styled pleading. See Erie Indem. Co., 272 A.2d at 467; In re Est. of Alexander,
758 A.2d 182, 189 (Pa. Super. 2000) (in orphans’ court matters, “[c]hallenges to a
litigant’s capacity to sue must be raised by way of preliminary objections or answer”). In
fact, every standing decision referenced herein and in the parties’ briefs involved an
appeal of an order disposing of preliminary objections. The effects of this procedure are
material: under Civil Procedure and Orphans’ Court Rules, a default twenty-day period
for responsive pleadings prioritizes prompt resolution of preliminary matters; specific legal
grounds and factual disputes are identified for the court and the parties through
admissions and denials which refine the issues, illuminate the relevance of anticipated
evidence, and promote fair play; and a clear scope and standard of review are established
in event of appeal. See Pa.R.O.C.P. 3.1-3.15.
Second, though the Orphans’ Court Rules unquestionably apply to adoption actions
proceeding in orphans’ court, see id. Rules 1.2, 15.1, in a circumstance unique to the City
of Philadelphia, our Constitution places the First Judicial District’s adoptions docket within
the jurisdiction of its Family Court, Juvenile Division, where an agency-initiated adoption
is cross-listed with the associated dependency matter, and the Rules of Juvenile Court
Procedure — and motions practice — predominate. See PA. CONST. art. V, §16(q)(iii);
supra note 2; see also Pa.R.J.C.P. 1100, 1133, 1344. Perhaps as result of this anomaly,
or in combination with the atypical circumstances attending virtual hearings during
pandemic-related restrictions, no particular procedural mechanisms appear to have been
employed in this case. Rather, a hearing was held more than a year after the motion to
intervene was filed, standing was first raised the day prior to the hearing in a
memorandum averring a chronology of facts which could not reasonably be assailed or
subject to discovery without further delay, and the legal arguments opposing the petition
were first raised at the conclusion of the hearing. Although certain procedural formalities
may be modified and defects disregarded by the court, the purpose of a trial court’s broad
discretion in this area is to fairly promote expeditious resolution of the child’s
circumstances in a manner that does not affect the substantive rights of the parties. See
Pa.R.O.C.P. 1.2; Pa.R.J.C.P. 1126, 1344. This Court is vested with the constitutional
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parentis status has been abandoned or terminated — and so with it standing — the inquiry
must also consider the reasons provided for periods when parental duties were not
performed. Decisions in this regard must be based on competent evidence of record.
Finally, whether such standing endures is a threshold matter, and has no bearing
on whether an intervenor’s petition will pass muster in a substantive analysis of the child’s
best interests in relation to further requirements under the Adoption Act or within the
court’s discretion.
We therefore reverse the Superior Court’s decision, and remand to the juvenile
court for a hearing de novo and proceedings consistent with this opinion before a different
judge.23
authority to administer the procedure and conduct of all courts, see PA. CONST. art. V,
§10; and thereby, for the purpose of circumnavigating any further delay in this matter, we
direct the adoption court, on remand, to set forth and enforce procedural expectations
substantially aligned with the Orphans’ Court Rules, specifically Chapters III (petition
practice), VII (hearings), and XV (adoptions), adapted as needed in the court’s discretion
to ensure the expeditious and just resolution of this preliminary matter now pending for
over two and a half years.
23 As a final prudential matter, we note the termination of parental rights hearing in this
case occurred on March 6, 2017, days prior to the filing of our decision in In re Adoption
of L.B.M., 161 A.3d 172 (Pa. 2017), and its progeny requiring trial courts, in termination
proceedings, to ensure legal counsel is appointed for the child and no conflict exists
between the child’s best and legal interests if counsel also serves as guardian ad litem.
See In re Adoption of K.M.G., 240 A.3d 1218, 1236, 1238 (Pa. 2020) (appellate court
must perform limited sua sponte review of termination of parental rights decisions for trial
court’s appointment of legal counsel and express ruling regarding conflict between best
and legal interests); 23 Pa.C.S. §2313(a) (court shall appoint counsel to represent child
in involuntary termination proceeding). The child advocate for K.N.L. has, with laudable
commitment, served in this dual role since inception of the dependency matter in 2015,
and agrees the trial court did not make such a determination in the underlying matter
(which we had not yet articulated as a requirement at the time). Although the role of
child’s legal counsel is not mandatory with respect to proceedings on an adoption petition,
as the child is now twelve years old and formal consideration of the issue is lacking in this
record, we suggest the juvenile court perform an updated inquiry into the consonance of
the child’s best and legal interests.
[J-33-2022] - 43
Chief Justice Todd and Justices Donohue, Wecht, Mundy and Brobson join the
opinion.
Justice Donohue files a concurring opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
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