Adopt. of: L.U., Appeal of: S.U.

J-S11002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF: L.U., L.U. : IN THE SUPERIOR COURT OF
AND E.U. : PENNSYLVANIA
:
:
APPEAL OF: S.U. :
:
:
:
: No. 1353 WDA 2020
Appeal from the Order Entered November 19, 2020
In the Court of Common Pleas of Allegheny County
Orphans' Court at No: A-20-23
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: May 19, 2021
S.U. (“Father”) appeals pro se from the November 19, 2020 order in the
Court of Common Pleas of Allegheny County that dismissed, without prejudice,
the petition for stepparent adoption, as amended, filed by him and his wife,
C.U. (“Stepmother”), with respect to his sons, L.U., born in November of 2014,
and twins, L.U. a/k/a Z.L.U. and E.U. a/k/a L.W.U., born in October of 20161
(collectively, “the Children”).2 Upon careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The record includes the birth certificates of Father’s twin sons, named Z.L.U.
and L.W.U., therein. In his petition for stepparent adoption, Father requested
the names of his twin sons be changed to L.T.U. and E.S.U. Amended Petition,
8/6/20, at ¶¶ 23-24. Although no court has changed the legal names of his
twin sons, Father identified them by his preferred names in the underlying
adoption action and on appeal to this Court.
2 Stepmother is not listed as an appellant.
J-S11002-21
On May 15, 2020, Father and Stepmother, acting pro se, filed the
petition for stepparent adoption, wherein they alleged that Father is the
natural parent of the Children, and that he married Stepmother in December
of 2018. Petition, 5/15/20, at ¶¶ 3, 4, 7. Father and Stepmother alleged that
the Children’s other biological parent is an anonymous donor. Id. at ¶ 19.
Thus, they alleged that the Children were conceived by in vitro fertilization
“and carried to birth by gestational surrogate[, C.J.].” Id. at ¶ 20. They
alleged that C.J.’s name appears on the Children’s birth certificates, but that
C.J., as a “gestational surrogate,” is a third party and not a legal parent. Id.
at ¶¶ 20, 28. Further, they alleged, “There has never been a decree of
termination of parental rights relating to” the Children. Id. at ¶ 26. In their
supplement to the foregoing petition, filed pro se on May 19, 2020, Father and
Stepmother asserted “the gestational surrogate has no parental rights to
relinquish;” however, they requested that the orphans’ court terminate C.J.’s
parental rights and grant the proposed adoption. Petition, 5/19/20, at ¶¶ 2,
5(b); Orphans’ Court Opinion, 1/12/21, at 1. They omitted any information
regarding consents required by 23 Pa.C.S. § 2711 (Consents necessary to
adoption). On August 6, 2020, Father and Stepmother filed an amended
petition for stepparent adoption, which includes, inter alia, the assertion that
Father has a Pennsylvania driver’s license.
-2-
J-S11002-21
On October 6, 2020, the orphans’ court appointed Thomas J. Dempsey,
Jr., Esquire, as guardian ad litem (“GAL”). The GAL explained in his appellee
brief:
It is undisputed that, as a matter of practice in any adoption case,
the [o]rphans’ [c]ourt does its own investigation. Here, the
investigation revealed the existence of [an] adjudication in the
courts of West Virginia, which [Father] had not revealed to the
[orphans’] court. The investigation and the publicly filed
documents in the West Virginia litigation establish that [C.J.] had
been adjudicated the mother of the [C]hildren and that she had
been awarded sole custody.
GAL brief at 8.
The orphans’ court held a preliminary hearing on the proposed adoption
on November 19, 2020. The court issued the following order, from which
Father appeals:
AND NOW, November 19, 2020, following an appearance before
the [c]ourt of Petitioners[, Stepmother] and [Father], pro se, and
Thomas J. Dempsey, Jr., Esquire, Guardian ad litem for the
proposed adoptees[,] to address the pending Petition for
Stepparent Adoption, as amended (“Petition”), the [c]ourt finds
the following from the record and by judicial notice:
Petitioner [Father] has been engaged in litigation in the Circuit
Court of Mason County West Virginia at proceedings docketed at
No. 16-D-233 which is related to the maternity and custody of
[the Children], the three proposed adoptees in this proceeding.
As part of that litigation, the Mason County Circuit Court
determined as a matter of fact and law that the Children identified
in the Petition were the children of [C.J.] and [Father], that [C.J.]
is the mother of the Children, and that [C.J.] was and is entitled
to sole legal custody of the Children.
The [c]ourt also takes notice that the Supreme Court of Appeals
of West Virginia affirmed the above-referenced adjudication of the
Mason County Circuit Court by its Memorandum Decision of
November 4, 2019, docketed at No. 18-0566. A review of the
-3-
J-S11002-21
Petition indicates that Petitioners have failed to indicate
that [C.J.] has been adjudicated to be the mother of the
Children, that [C.J.] has been awarded sole legal custody
of the Children, that any notice of the intent to present the
Petition to this [c]ourt was provided to [C.J.], the mother
of the Children, or that [C.J.] has been asked to, or
consented to, the termination of her parental rights to the
Children.
It is therefore ORDERED that the petition for stepparent adoption
of [the Children] filed by [Stepmother] and [Father] is DISMISSED
without prejudice.
Order, 11/19/20 (emphasis added).
On December 15, 2020, Father, acting pro se, timely filed a notice of
appeal and a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(a)(2)(i) and (b). The orphans’ court filed an opinion pursuant
to Rule 1925(a) on January 12, 2021.
On appeal, Father presents the following questions:
1. Did the [o]rphans’ [c]ourt err by sua sponte relying on
custody proceedings from the State of West Virginia in an
action that was filed under the Adoption Act in
Pennsylvania?
2. Did the [o]rphans’ [c]ourt err in dismissing the petition for
stepparent adoption due to the lack of notice to, and/or
consent from, a gestational surrogate?
3. Did the [o]rphans’ [c]ourt err by denying [Father]’s
[c]onstitutionally protected rights under [d]ue [p]rocess
and [e]qual [p]rotection?
Father’s Brief at 9.
-4-
J-S11002-21
The GAL asserts in his appellee brief that this appeal is interlocutory
because the November 19, 2020 order is not final.3 The GAL cites Mier v.
Stewart, 683 A.2d 930 (Pa. Super. 1996), where we held that the order
dismissing a complaint without prejudice and giving the plaintiff thirty days to
file an amended complaint is not a final order. We stated, “By granting a party
leave to amend, the trial court has not finally disposed of the parties or their
claims.” Id. at 930. The GAL asserts that the November 19, 2020 order is
likewise not final because it dismissed Father’s and Stepmother’s petition
without prejudice. We disagree.
It is well-established:
An appeal may be taken as of right from a final order. Pa.R.A.P.
341(a). A final order is one that disposes of all claims and of all
parties. Pa.R.A.P. 341(b)(1). . . . [W]hen the dismissal [of a
complaint] is without prejudice for the party to file an amended
pleading to cure defects, the order is interlocutory, as it does not
put the party “out of court.” Lichtenwalner by Lichtenwalner
v. Schlicting, 552 A.2d 302, 302-03 (Pa. Super. 1989).
In re Nadzam, 203 A.3d 215, 219 (Pa. Super. 2019) (determining that the
order is a final, appealable order where it left no outstanding claims or parties
remaining in the action).
____________________________________________
3 This Court issued a rule to show cause order on January 5, 2021, with respect
to why this appeal should not be quashed as interlocutory. Father filed a
response on January 8, 2021. On January 27, 2021, this Court discharged
the order but did not make a determination regarding whether the appeal is
interlocutory.
-5-
J-S11002-21
Instantly, the November 19, 2020 order dismissed the petition for
stepparent adoption without prejudice; however, unlike the order in Mier, it
did not grant Father and Stepmother leave to amend their petition. Here, the
court dismissed the adoption action for lack of jurisdiction because it found
that neither Father nor Stepmother were residents of Allegheny County.
Orphans’ Court Opinion, 1/12/21, at 1, 3; see also 23 Pa.C.S. § 2302 (Venue)
(providing, in relevant part, “Proceedings for voluntary relinquishment,
involuntary termination and adoption may be brought in the court of the
county: “(1) Where the parent or parents or the adoptee . . . reside. . . .
(3) With leave of court, in which the adoptee formerly resided.”).4
In addition, the court dismissed the action for lack of jurisdiction
because it found that the West Virginia courts determined that C.J. is the
Children’s legal mother and awarded her “primary residential and custodial
parent of” the Children. S.U. v. C.J., No. 18-0566, 2019 WL 5692550
(Supreme Court of Appeals of West Virginia, filed November 4, 2019)
(unpublished memorandum) (“Supreme Court of Appeals”). Therefore, the
November 19, 2020 order finally disposed of the parties and their claims
without reaching the merits of their adoption action. As such, the order is
____________________________________________
4 There is no record evidence that Father, Stepmother, or the Children reside
or formerly resided in Allegheny County, Pennsylvania. With respect to
Father’s Pennsylvania driver’s license, the court found that he obtained it “less
than a week prior to filing the [p]etition.” Orphans’ Court Opinion, 1/12/21,
at 3.
-6-
J-S11002-21
final and appealable. See Damico v. Royal Ins. Co., 556 A.2d 886, 887 (Pa.
Super. 1989) (concluding that an order dismissing an action without prejudice
for lack of jurisdiction due to the failure to join an indispensable party is final
and appealable).
Father’s issues are interrelated, and so we consider them together. In
his first issue, he argues that the orphans’ court erred in relying on the
decision of the Supreme Court of Appeals in dismissing the petition for
stepparent adoption. As best we can discern, Father contends that the West
Virginia court proceedings pertained to child custody, and the action he
instituted in Pennsylvania pertained to adoption. Therefore, Father contends
that the decision of the Supreme Court of Appeals is irrelevant.
However, Father also contends in his first issue that the decision of the
Supreme Court of Appeals is void because it violates his substantive due
process rights under the Fourteenth Amendment to the United States
Constitution. Specifically, he asserts that “the State of West Virginia has
permitted gestational surrogate[, C.J.,] to infringe upon the rights of [Father]
and his children.” Father’s brief at 24. Father asserts, “the gestational
surrogate has no parental rights; . . . the gestational surrogate does not have
a right “‘to object to or receive notice of adoption proceedings.’” Id. at 17
(citation omitted). Similarly, in his second issue, Father asserts that C.J.’s
consent to the adoption was unnecessary because she has no parental rights
as the gestational surrogate.
-7-
J-S11002-21
In his third and final issue, Father contends that, in dismissing the
adoption action, the orphans’ court violated his substantive right to due
process and equal protection under the Fourteenth Amendment of the United
States Constitution by “treating him differently based upon his method of
procreation.” Father’s brief at 36. For the following reasons, we conclude that
Father’s issues are without merit.
When considering an appeal from an orphans’ court order, our standard
of review is as follows:
This court must determine whether the record is free from legal
error and the orphans’ court’s factual findings are supported by
the evidence. Because the court sits as the fact-finder, it
determines the credibility of the witnesses and on review, we will
not reverse its credibility determinations absent an abuse of that
discretion.
In re Adoption of A.M.B., 812 A.2d 659, 662 (Pa. Super. 2002).
In re Adoption of R.J.S., 889 A.2d 92, 95-96 (Pa. Super. 2005).
In his appellee brief, the GAL responds to Father’s issues by stating that
the orphans’ court “was required to give full faith and credit to the adjudication
of the West Virginia courts under the full faith and credit clause of the United
States Constitution.” GAL brief at 14; see also USCS Const. Art. IV, § 1 (“Full
faith and credit shall be given in each State to the public acts, Records and
judicial [P]roceedings of every other State. And the Congress may by general
Laws prescribe the Manner in which such Acts, Records and Proceedings shall
be proved, and the Effect thereof.”).
-8-
J-S11002-21
Indeed, in its Rule 1925(a) opinion, the orphans’ court explained that
its dismissal of the adoption action “had absolutely nothing to do with the
manner in which the [C]hildren were created; rather, the court relied primarily
on the fact that it does not have jurisdiction due to” the disposition of the
Supreme Court of Appeals. Orphans’ Court Opinion, 1/12/21, at 3-4.
Our review of the disposition reveals that Father initiated the action in
West Virginia “shortly before the birth of the twins in an attempt to prevent
[C.J.]’s name from being listed on their birth certificates. Because he obtained
no court ruling prior to the filing of their birth certificates, Father now seeks
to force an adoption, remove [C.J.] from the twins’ birth certificates, and take
sole custody not only of the twins, but also [L.J.U., born in November of 2014].
Father admits that he did not label it as an adoption, but in substance, that
was exactly what he was trying to accomplish.’” S.U. v. C.J., supra.
The Supreme Court of Appeals affirmed the order of the Circuit Court of
Mason County, West Virginia (“Circuit Court”), which refused Father’s petition
for appeal from an order of the Family Court of Mason County (“Family Court”)
designating C.J. “as the primary residential and custodial parent of the
Children.”5 S.U. v. C.J., supra. The Supreme Court of Appeals disagreed
with Father’s argument that the Family Court erred “by rejecting his claim that
____________________________________________
5The Family Court found the Children “have a close emotional bond to [C.J.]
and she is ‘a fit and proper parent[.]’” S.U. v. C.J., supra.
-9-
J-S11002-21
[C.J.] has no rights whatsoever to the parties’ three youngest children because
she was acting as his gestational surrogate.”6 Id. The Family Court
determined that Father failed to overcome the presumption set forth in West
Virginia Code § 16-5-10(e) that provides, “the woman who gives birth to the
child is presumed to be the mother[.]”7 Id. (footnote omitted).
With respect to adoption in Pennsylvania, this Court has stated:
The law as to adoption in Pennsylvania is well-settled: a child
may be adopted if its parents have had their parental rights
terminated, either by consent or involuntarily. Once this prior
adjudication has been made and the rights of the natural parents
are no more, the best interest of the child becomes the criterion
by which a court must be guided.
(Emphasis in original).
In re Adoption of Hess, 562 A.2d 1375, 1377 (Pa. Super. 1989) (citing
Matter of Adoption of Sturgeon, 445 A.2d 1314, 1321 (Pa. Super. 1982)).
Here, Father acknowledged that C.J.’s parental rights have not been
involuntarily terminated. He asserts, contrary to the disposition of the
Supreme Court of Appeals, that, as the gestational surrogate, C.J.’s consent
____________________________________________
6Father asserted that he and C.J. have an older child who was born in 2011,
and who was not the subject of his adoption action in Pennsylvania. Amended
Petition, 8/6/20, at ¶ 13. Likewise, the older child is not a subject of this
appeal.
7 West Virginia Code § 16-5-10(e) fully provides, “[f]or the purposes of birth
registration, the woman who gives birth to the child is presumed to be the
mother, unless otherwise specifically provided by state law or determined by
a court of competent jurisdiction prior to the filing of the certificate of birth.”
S.U. v. C.J., supra.
- 10 -
J-S11002-21
to the proposed adoption was not required, and she was not required to be
notified of the same. We disagree.
Because C.J. was adjudicated the legal mother of the Children in the
custody proceedings initiated by Father in the Family Court, her consent to
the proposed adoption was required pursuant to Section 2711 of the Adoption
Act, 23 Pa.C.S. § 2711(a)(3), which provides:
§ 2711. Consents necessary to adoption.
(a) General rule. — Except as otherwise provided in this part,
consent to an adoption shall be required of the following:
...
(3) The parents or surviving parent of an adoptee who has
not reached the age of 18 years.
...
23 Pa.C.S. § 2711(a)(3).
It follows that Father was required to serve C.J. with notice. The
Adoption Act specifically addresses the notice requirement:
§ 2721. Notice of hearing.
The court shall fix a time and place for hearing. Notice of the
hearing shall be given to all persons whose consents are required
and to such other persons as the court shall direct. Notice to the
parent or parents of the adoptee, if required, may be given by the
intermediary or someone acting on his behalf. Notice shall be by
personal service or by registered mail to the last known address
of the person to be notified or in such other manner as the court
shall direct.
23 Pa.C.S. § 2721; see also Pa.O.C. Rule 15.6 (Notice to Persons; Method;
Notice of Orphans’ Court Proceedings filed on Dependency Docket).
- 11 -
J-S11002-21
Based on the foregoing, we discern no abuse of discretion or error by
the orphans’ court in dismissing the petition for stepparent adoption. Father
clearly has attempted “to force an adoption” in Pennsylvania, as he did in West
Virginia. This Court concluded long ago:
Pennsylvania courts can[not] ignore with impunity a custody
action or decree in the courts of a sister state. The Pennsylvania
Adoption Law, which provides for notice “to such other persons as
the court shall direct,” requires at the very least that notice of the
adoption proceedings be given to the parties to a pending custody
action or, as here, to grandparents who have been granted
custody of the children by the court of another state. . . . The
courts of this Commonwealth will not be permitted to become
accessories to the conniving act of the parent who attempts to
evade a custody order entered by the courts of another state.
In re Adoption of B.E.W.G., 549 A.2d 1286, 1290-91 (Pa. Super. 1988)
(reversing order dismissing the grandparents’ petition to vacate the adoption
decree where the father removed the children from the State of New York in
defiance of custody proceedings there pending and surrendering the children
for adoption in Pennsylvania). Accordingly, we affirm the order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/19/2021
- 12 -