In the Int. of: Z.S., Jr., Appeal of: T.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.S., JR., : IN THE SUPERIOR COURT OF
MINOR CHILD : PENNSYLVANIA
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APPEAL OF: T.S., M.S., AND T.B. :
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: No. 381 WDA 2022
Appeal from the Order Dated March 17, 2022,
in the Court of Common Pleas of Washington County,
Orphans' Court at No(s): 63-21-1272.
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: December 1, 2022
In this matter, T.S. (Great Aunt), her husband M.S. (Great Uncle) and
her sister T.B. (Great Aunt), collectively “the Relatives,” appeal from the denial
of their request to intervene in the adoption matter involving their one-year-
old nephew, Z.S., Jr. (the Child). The Child had been the subject of a
dependency case that resulted in the termination of parental rights.
Thereafter, the Child was adopted by his foster parents. Only after the
orphans’ court issued the adoption decree did the Relatives seek to intervene.
They also sought to vacate the adoption decree. After careful review, we
affirm.
The relevant history is as follows. The Child was born in November
2020. For the first few months of his life, the Child resided in the home of
D.B., the paternal grandmother (who is the sister of T.S. and T.B.). In January
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2021, Washington County Children and Youth Services (CYS) removed the
Child and placed him in the foster home of Sa.B. and Sh.B. (Adoptive Parents).
The dependency case proceeded over the next ten months. The orphans’
court ultimately granted the petition filed by CYS and terminated Mother’s
rights on October 28, 2021. The purported father, whose paternity had
apparently never been established, died earlier during the dependency
proceedings. By the decree issued on February 10, 2022, the Adoptive
Parents formally adopted the Child.
In their Brief, the Relatives allege another set of facts. First, the
Relatives claim CYS told them the Child would eventually be returned to the
Paternal Grandmother’s home. At one point during the Child’s dependency
proceedings, CYS petitioned the court to allow the Relatives to visit the Child.
The court granted the petition and ordered visitation between the Child and
the Relatives, as the foster parents allowed. The Relatives also allege that
during the dependency proceeding, CYS promised to keep them informed so
that they could file a competing adoption petition at the appropriate time. The
Relatives explain that T.S. and M.S. are approved foster parents in their own
right. The Relatives had retained an attorney in Fall 2021 so that they would
be prepared to file a petition for adoption. They did not learn about the
adoption by the foster parents until after it occurred. The Relatives fault CYS
for not informing them of the termination of parental rights or of the foster
parents’ adoption petition. They allege that CYS intentionally lulled them into
a sense of complacency.
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On February 14, 2022, four days after the issuance of the adoption
decree, the Relatives learned of the adoption proceedings. They filed a Report
of Intention to Adopt on the same day. On February 22, 2022, the Relatives
filed an Emergency Motion to Intervene. On March 1, 2022, the orphans’ court
denied their request, but directed CYS to disclose to the Relatives details of
the dependency case. Evidently, CYS had not been responsive to the Relatives
inquiries – ostensibly, because the adoption decree had already been entered,
coupled with the fact that the underlying dependency case was a sealed
juvenile record. On March 7, 2022, the Relatives filed an Emergency Motion
to Vacate the Adoption Decree. By order of March 10, 2022, the orphans’
court issued an order, which stayed the decree and scheduled an evidentiary
hearing for March 17, 2022, to consider the issues raised.
But at the hearing, the court primarily addressed the Relatives’ failure
to provide proper notice to the Adoptive Parents. (The Adoptive Parents were
able to retain counsel the day before the hearing, and counsel appeared.)
Counsel for the Relatives argued that a continuance would ensure all the
interested respondents had proper notice of any of the Relatives’ prior filings,
starting with their Motion to Intervene. However, the Relatives’ imperfect
notice was only one of the court’s concerns. The court was also troubled by
the fact that the decree had been entered prior to the Relatives’ filings. The
orphans’ court ultimately lifted the stay and denied the Relatives’ Motion to
Vacate the Adoption Decree.
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The Relatives filed a Motion for Reconsideration, which the orphans’
court denied. The Relatives filed this appeal on March 31, 2022. Specifically,
they appeal three orders: 1) the March 1 order denying their Motion to
Intervene; 2) the March 17 order, which lifted the stay and dismissed the
Motion to Vacate the Adoption Decree; and 3) the February 10, 2022 adoption
decree nunc pro tunc. They present the following issues for our review:
1. Did the orphans’ court commit an error of law and/or
an abuse of discretion in determining that the
Relatives did not have standing to intervene?
2. Did the orphans’ court commit an error of law and/or
an abuse of discretion in staying the adoption decree,
then lifting the stay without a hearing?
3. Did the orphans’ court commit an error of law and/or
an abuse of discretion in failing to proceed with a
hearing to vacate the adoption decree and thereafter
in failing to vacate the adoption decree?
4. Did the orphans’ court commit an error of law and/or
an abuse of discretion in denying the Relatives a
hearing to determine if they should have been notified
of the adoption hearing?
5. Did the orphans’ court commit an error of law and/or
an abuse of discretion in determining that notice to
the attorney who filed the adoption petition on behalf
of the Adoptive Parents was not sufficient notice of the
motion filed by the Relatives?
See Relatives’ Brief at 3-4 (cleaned up).
In its Pa.R.A.P. 1925(a) opinion, the orphans’ court determined that it
lacked authority to grant the Relatives’ requested relief, because they waited
until after the entry of the adoption decree to intervene in the proceedings.
On appeal, the Appellees (CYS, the Child via his guardian ad litem, and the
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Adoptive Parents) advance substantially the same argument. Before we
discuss these appellate issues, we address the ramifications of the Relatives’
delay in filing.
The Relatives’ issues involve questions of law, for which our standard of
review is de novo and our scope of review is plenary. See Interest of K.N.L.,
--- A.3d ---, at *5, 2022 WL 10719028 (Pa. October 19, 2022) (citations
omitted). In matters arising under the Adoption Act, our plenary scope of
review is “of the broadest type.” Id. (citations omitted). In these matters,
an appellate court is not bound by the trial court’s inferences drawn from its
findings of fact, and is compelled to perform a comprehensive review of the
record for assurance the findings are competently supported. Id. (citations
omitted).
Pennsylvania Rule of Civil Procedure 2327 provides, in relevant part:
At any time during the pendency of an action, a person
not a party thereto shall be permitted to intervene therein,
subject to these rules if
[…]
(4) the determination of such action may affect any legally
enforceable interest of such person whether or not such
person may be bound by a judgment in the action.
Pa.R.C.P. 2327(4) (emphasis added).
This Court has held that “an action or suit is ‘pending’ from its inception
until the rendition of a final judgment.” U.S. Bank National Association for
Pennsylvania Housing Finance Agency v. Watters, 163 A.3d 1019, 1027
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(Pa. Super. 2017); see also Admiral Homes, Inc. v. Floto Management
Corp, 156 A.2d 326, 328-29 (Pa. 1959) (“[I]ntervention is proper only during
the pendency of an action; after final adjudication such an application comes
too late.”).
Instantly, the Relatives filed their motion to intervene on February 22,
2022, which was 12 days after the entry of the adoption decree. We conclude
that the adoption proceedings were no longer pending, and thus the orphans’
court was correct to determine that the Relatives’ intervention was improper.
In reaching this conclusion, we are also guided by our recent decision in
Interest of K.C.C., 2020 WL 974233 (Pa. Super. 2020) (non-precedential
decision).1 There, a grandmother sought to intervene 13 days after the
orphans’ court issued a decree granting the adoption petition filed by the
foster parents. We concluded that the grandmother was too late. “Regardless
of whether [the grandmother] could have intervened in the prior proceeding,
she did not and, therefore, she is not a party with standing to appeal the
adoption decree.” K.C.C. at *4.
Notably, the Relatives do not argue that their Motion to Intervene was
timely, because it was filed within the 30-day window for the orphans’ court
modify its orders. See 42 Pa.C.S.A. § 5505 (“Modification of orders”). Rather,
they argue that they were parties, as evidenced by the fact that they received
visitation during the dependency proceedings, and therefore entitled to notice
____________________________________________
1 Per 210 Pa. Code § 65.37, non-precedential decisions of this Court issued
after May 1, 2019 may be cited for their persuasive value. See also Pa.R.A.P.
126(b).
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of the adoption petition. According to the Relatives, if a petitioner obtains an
adoption decree without first providing notice to the interested parties, then
the court must vacate the faulty decree.
For support, the Relatives rely on In re Adoption of R.J.S., 889 A.2d
92 (Pa. Super. 2005). In R.J.S., we affirmed the trial court’s decision to
revoke the adoption decree, where the adoptive parents – an aunt and uncle
– failed to give grandparents notice of the adoption petition. This Court
concluded that the grandparents were entitled to notice of the adoption
petition, pursuant to Section 2721 of the Adoption Act. See 23 Pa.C.S.A. §
2721. Section 2721 provides:
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.
Id. (Emphasis added).
We reasoned that the grandparents were “such other persons” requiring
notice, because the grandparents had partial custody of the child, and thus
were parties to the custody litigation with the aunt and uncle. R.J.S., 889
A.2d at 97. Perhaps most significantly, the trial court had previously directed
the parties, in its custody order, to keep one another informed. R.J.S. 889
A.2d at 94, 96 (citing 23 Pa.C.S.A. § 2721). The aunt and the uncle
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conveniently omitted the grandparents’ involvement with the child when they
petitioned for adoption.
Returning to the instant matter, the Relatives argue they were in the
same position as the grandparents in R.J.S. They maintain they were similarly
entitled to notice under the “such other persons” clause of Section 2721,
because they were parties, having received some visitation during the
dependency proceedings. For good measure, they argue that they were
similarly deceived by CYS, just as the grandparents were deceived in R.J.S.
We find R.J.S. to be distinguishable from the instant matter. To the
extent that one’s custody rights require due notice of any subsequent adoption
petition under Section 2721, we would still conclude that the Relatives merit
no relief. Notably, the Relatives had no custody rights to the Child. While the
Relatives’ visitation was reduced to a court order, that order only granted
visitation to the Relatives “as determined…by the foster family ([the now-
Adoptive Parents]).” See Order of Court, 9/9/21. The Relatives never had
any independent ability to access the Child. See D.P. v. G.J.P., 146 A.3d
204, 210 n.7 (Pa. 2016) (“Visitation and custody are distinct concepts.
Visitation pertains to the right to visit a child but does not include the ability
to remove the child from the custodial parent’s control.”) (Further citations
omitted). The foster parents were the unilateral gatekeepers of this visitation,
and the custody of the Child had been transferred to CYS. For these reasons,
we conclude that the Relatives’ tangential involvement during the dependency
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proceedings did not entitle them to notice of the adoption petition under
Section 2721.
The Relatives advance a secondary argument, namely that they had
standing to intervene in the adoption proceedings under In re Adoption of
Hess, 608 A.2d 10 (Pa. 1992) and In re Adoption of J.E.F., 902 A.2d 402(Pa. 2006). The Relatives did not have the benefit of our Supreme Court’s
recent decision in Interest of K.N.L., --- A.3d ---, 2022 WL 10719028, at *1-
19 (Pa. October 19, 2022), which further defined the jurisprudence on this
issue. But none of those precedents is particularly helpful in this matter. In
each of those cases, the appellant(s) petitioned the court prior to the issuance
of the adoption decree. Because the action was still pending, the standing
issue was then analyzed under Rule 2327.
Here, we do not reach this level of inquiry, because the Relatives filed
their action after the adjudication took place. In other words, the Relatives
fail the threshold question in Rule 2327 – whether the action is pending.
Because the action was no longer pending when they filed their petition, we
do not reach the question of whether the Relatives had a right to intervene
under Rule 2327(4) and our precedents.
As a final note, we observe that the Relatives and the Appellees dedicate
substantial portions of their appellate arguments to blame one another for the
Relatives’ delay. These arguments lack both evidentiary support and legal
relevance. Whatever inference we could draw against one side, could just as
easily cut against the other. We highlight these arguments, because the
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litigants have indicated that after this matter is resolved, and passions have
cooled, a relationship between the Relatives and the Child might be possible.
Thus, to further aid the cooling process, we remind the Relatives that even if
they survived the standing inquiry under Pa.R.C.P. 2327, the orphans’ court
might have still refused their intervention for undue delay, pursuant to
Pa.R.C.P. 2329(3). See also In re T.T., 842 A.2d 962, 965 (Pa. Super. 2004)
(affirming the trial court’s refusal to let a stepfather intervene in a child’s
dependency proceedings, having failed to exercise his rights until 10 months
after the child’s dependency adjudication); see also K.N.L., at 17, n.21. And
even if the Relatives survived that inquiry and were ultimately able to vacate
the existing adoption decree, and were able to file their competing adoption
petition, there would still be no guarantee that the court would find that their
proposed adoption would be in the Child’s best interests.
Nothing in our decision should be construed as a judgment of the parties’
intentions or this Court’s preference of who should become the Child’s
adoptive parents. We function as an error-correcting court. In this case, we
find no error. The orphans’ court properly denied the Relatives’ Motion to
Intervene and Emergency Motion to Vacate the Adoption Decree. Intervention
would have been improper, because the adoption proceeding was no longer
pending after the orphans’ court issued the decree. Moreover, revocation of
the adoption decree was not warranted, because the Relatives were not
entitled to notice of the adoption petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2022
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