Adoption of: A.M.W., Appeal of: M.J.G.

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2023 PA Super 10IN RE: ADOPTION OF: A.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.J.G. :
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: No. 519 MDA 2021
Appeal from the Decree Entered March 31, 2021
In the Court of Common Pleas of Bradford County Orphans' Court at
No(s): 18 ADOPT 2020
BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,
J.
DISSENTING OPINION BY KUNSELMAN, J.: FILED JANUARY 19, 2023
In this matter, Former Stepfather asks this Court to consider, inter alia:
1) whether the orphans’ court erred when it denied his competing petition for
adoption; 2) whether the orphans’ court erred when it failed to rule on his
petition to intervene; and 3) whether the orphans’ court abused its discretion
in failing to appoint legal counsel and/or a guardian ad litem for the Child.
See Majority Opinion at 3-4; see also Former Stepfather’s Original Brief at 4.
The Majority agrees with Former Stepfather in all three respects.
Consequently, it vacates the Current Stepfather’s adoption decree, as well as
the order dismissing Former Stepfather’s petition to intervene and adoption
petition, and it remands for a new hearing and for the appointment of counsel
for the Child. See Majority Opinion, at 19-20.
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I respectfully dissent from my learned colleagues in the Majority on each
point. Summarily, I conclude the orphans’ court correctly dismissed Former
Stepfather’s competing adoption petition – i.e., his independent cause of
action – because Mother withheld her consent. Furthermore, the orphans’
court correctly denied Former Stepfather’s petition to intervene – i.e.,
intervene in the separate litigation involving the Current Stepfather’s adoption
petition – because Former Stepfather was not aggrieved by Current
Stepfather’s petition. Finally, the orphans’ court had discretion to appoint
representation for the Child in an adoption proceeding but was not mandated
to do so; and this Court lacks the authority to review sua sponte such a
decision. Therefore, I would affirm the orphans’ court’s decree granting the
adoption of the Child by Current Stepfather.1
I. Former Stepfather’s Competing Adoption Petition
This action began when Mother filed a petition to terminate the parental
rights of Biological Father, contemporaneously with Current Stepfather’s
petition to adopt the Child. Former Stepfather then filed a competing petition
for adoption. Significantly, Mother only consented to the adoption petition
filed by Current Stepfather. Noting Mother’s lack of consent, the orphans’
court dismissed Former Stepfather’s competing petition.
The Majority opines that the orphans’ court erred when “focused on the
absence of Mother’s consent” in dismissing Former Stepfather’s petition. See
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1 I only address the three issues discussed by the Majority, but I would
conclude Former Stepfather’s other appellate issues merit no relief.
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Majority Opinion at 13. According to the Majority, the orphans’ court should
have conducted a hearing to determine whether Former Stepfather had
standing. The Majority reaches this conclusion by relying on our Supreme
Court’s recent decision in Interest of K.N.L., 284 A.3d 121 (Pa. 2022).
However, the Majority relies too heavily on the similarities between the
instant case and K.N.L., without analyzing the key difference between the two
cases - that K.N.L. involves an agency adoption and this case involves a
stepparent adoption. See Majority Opinion at 10, 13. In its misconstruction
of K.N.L., the Majority conflates the question of standing to petition for
adoption in an agency adoption, with the question of whether a parent’s
withheld consent defeats a stepparent adoption. The question of standing is
not the right question to ask for a stepparent adoption. Instead, the question
is whether an individual may file a competing adoption petition, over the
withheld consent of the child’s parent whose rights remain intact. That answer
is no.
The Adoption Act provides: “Any individual may become an adopting
parent.” 23 Pa.C.S.A. § 2312. This provision is only the starting point in any
standing analysis involving an adoption. See generally K.N.L., 284 A.3d at
139-140. “Notwithstanding this [] 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.” Id. at 139; see also
23 Pa.C.S.A. § 2701 (relating to contents of a petition for adoption).
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Among those other provisions is Section 2711, which mandates that a
party seeking to adopt must obtain the consent of certain individuals. See id.
at 139; see also 23 Pa.C.S.A. § 2701(7).2 Sometimes those required
consents may be excused. When the Majority overlooked the distinction
between an agency adoption and a stepparent adoption, it failed to appreciate
the difference between an agency’s consent and a parent’s consent. And it
misunderstood when the orphans’ court may excuse the consent requirement
and when it may not.
The Adoption Act mandates that the parents of a child must consent to
the child’s adoption. 23 Pa.C.S.A. § 2711(a)(3).3 In a typical agency adoption,
like K.N.L., consent of the parents is not required, because the parental rights
of both parents have already been terminated. See 23 Pa.C.S.A. § 2714.4
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2“A petition for adoption shall set forth: (7) That all consents required by
Section 2711 (relating to consents necessary to adoption) are attached as
exhibits or the basis upon which such consents are not required.” 23
Pa.C.S.A. § 2701(7).
3“(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.A.
§ 2711(a)(3).
4 Section 2714 of the Adoption Act provides:
Consent of a parent to adoption shall not be required if a
decree of termination with regard to such parent has been
entered. When parental rights have not previously been
terminated, the court may find that consent of a parent of
the adoptee is not required if, after notice and hearing as
prescribed in section 2513 (relating to hearing), the court
(Footnote Continued Next Page)
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Following the termination of parental rights, the agency becomes the child’s
guardian, and thus the agency must consent to any subsequent adoption. See
23 Pa.C.S.A. § 2711(a)(5);5 see also K.N.L, 284 A.3d at 140; and see In re
Adoption of J.E.F., 902 A.2d 402, 411 (Pa. 2006). Critically, the Adoption
Act authorizes the orphans’ court to dispense with the agency’s consent, in
limited circumstances when “the adoptee is under 18 years of age and has no
living parent whose consent is required.” 23 Pa.C.S.A. § 2713(2).
Our Supreme Court has interpreted these provisions to mean that an
agency, acting as the child’s guardian following the termination of parental
rights, may not withhold consent to defeat a potential adoption petition. See
In re Adoption of Hess, 608 A.2d 10, 14 (Pa. 1992) (citing 23 Pa.C.S.A. §
2713(2)). Subsequent cases addressed whether an agency’s withheld consent
deprives an individual of standing to file an adoption petition. Our Supreme
Court explained that the agency’s “withheld consent alone does not destroy a
party’s standing under [the] traditional standing doctrine.” In re Adoption
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finds that grounds exist for involuntary termination under
section 2511 (relating to grounds for involuntary
termination).
23 Pa.C.S.A. § 2714.
5 “(a) General rule. – Except as otherwise provided in this part, consent to
an adoption shall be required of the following: (5) The guardian of the person
of an adoptee under the age of 18 years…whenever the adoptee has no
parent whose consent is required.” 23 Pa.C.S.A. § 2711(a)(5) (emphasis
added).
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of J.E.F., 902 A.2d 402, 412 (Pa. 2006). K.N.L. further defined the standing
doctrine, but only as applied in agency adoptions. K.N.L., 284 A.3d at 140.6
This is where the Majority goes astray. K.N.L. and J.E.F. held that an
agency’s withheld consent under Section 2711(a)(5) is not a bar to standing,
because the orphans’ court may excuse that consent requirement under
Section 2713(2). See J.E.F., 902 A.2d at 404-05; see also K.N.L., 284 A.3d
at 140 (“As a result of the broad discretionary authority conferred to the
adoption court by Section 2713 to dispense with certain consents in the
critical context of the child’s best interest, 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.”)(emphasis added); at 141 (“We reiterate: the agency’s
withheld consent is not a bar to standing and has no part in the analysis[.]”)
(emphasis added).
Those precedents, however, have no bearing on a stepparent adoption,
where the parent, whose rights remain intact, has withheld her consent.
Nothing in J.E.F., nor K.N.L., nor Section 2713 suggests that an orphans’
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6 A primary function of K.N.L. was to dispel this Court of its mistaken belief
that only an individual who currently has in loco parentis status, at the time
of the adoption petition, has standing. See K.N.L., 284 A.3d at 138 (“[W]e
observe there exists no pronouncement of this Court endorsing such a rule,
or any of these criteria [articulated by our precedents], as perquisite to a non-
foster-parent, third party’s demonstration of standing to intervene in an action
to adopt a child in the custody of an agency.”).
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court has discretionary authority to dispense with such a parent’s consent
under Section 2711(a)(3). Thus, K.N.L. is plainly inapposite. In my view,
the Supreme Court’s rationale in K.N.L. clearly indicates why its holding only
applies where the parental rights of both parents have been terminated, and
should not be extended to stepparent adoptions where one parent retains
parental rights:
“[N]othing in the [Adoption] Act precludes any party from
filing a petition for adoption, nor is there anything to
preclude a trial court from entertaining multiple adoption
petitions and then determining the best interests of the
child. 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, there 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. In these latter situations,
the appropriate parameters of standing are not drawn from
the statue’s provisions, but from traditional jurisprudential
standing principles.
K.N.L., at 142 (citations and internal quotations omitted) (emphasis added).
It makes sense that the Adoption Act would allow for a broader pool of
potential adoptive parents in an agency case, where the child is essentially a
temporary orphan. It would not be in the child’s best interest to limit the
number of qualified third parties seeking to become the child’s new parent(s).
This underscores why an agency’s withheld consent does not, and should not,
defeat an adoption petition.
In a stepparent adoption, by contrast, the parent’s rights remain intact.
That parent retains the right to decide who gets to engraft themselves into
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the child’s family tree, and even that right is limited. Here, Mother’s parental
rights remain intact, and thus her consent is required by law, not only as it
relates to Former Stepfather’s petition, but for any adoption. Unlike the
consent of the agency-guardian (under Section 2711(a)(5)) in an agency
adoption, the orphans’ court is not authorized to dispense with a parent’s
consent (under Section 2711(a)(3)) in a stepparent adoption. Section
2713(2) only authorizes the court to dispense with a living parent’s consent
when that parent’s consent is “not required” – i.e., when that parent’s rights
have been previously terminated. See 23 Pa.C.S.A. §§ 2711(a)(5), 2714.
Thus, the standing question is simply the wrong question to ask
regarding Former Stepfather’s petition to adopt. Yes, “any individual may
become an adoptive parent” under Section 2312, but that individual must still
abide by the rest of the Adoption Act’s “exacting substantive and procedural
requirements,” including the consent requirements set forth in Section 2711.
K.N.L., 284 A.3d at 139; see also 23 Pa.C.S.A. § 2701(7) (relating to
contents of a petition for adoption). Put another way, whether Former
Stepfather had “standing” to file a competing petition is something of a red
herring. Regardless of whether Former Stepfather had standing to file a
petition for adoption, his petition cannot proceed as a matter of law, because
Mother withheld her consent. See 23 Pa.C.S.A. § 2701(7). The orphans’ court
correctly dismissed Former Stepfather’s competing adoption petition, because
the court recognized that it had no authority under Section 2713(2) to
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dispense with her consent. And without Mother’s consent, Former Stepfather
cannot meet the prima facie case necessary for a stepparent adoption.7
II. Former Stepfather’s Petition to Intervene
In addition to filing a competing petition for adoption, Former Stepfather
filed a separate petition to intervene in the adoption proceeding filed by
Current Stepfather. The orphans’ court, having already dismissed his
competing petition for adoption, did not rule on Former Stepfather’s petition
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7 I have additional policy concerns with the “breathtakingly broad” implications
of the Majority’s decision. See Troxel v. Granville, 530 U.S. 57, 67 (2000)
(holding unconstitutional Washington state’s nonparental visitation statute,
which provided standing to “any person” and “at any time.”). Application of
the Majority’s holding now opens the courthouse doors to any and all former
partners to file their own petition for adoption any time one parent seeks to
terminate the rights of the other parent. Under the majority’s decision today,
these former partners are now entitled to – at the very least – a hearing on
standing to adopt the parent’s child, even over the objection of the parent.
Former Stepfather could have proceeded with a private termination and
stepparent adoption petition at any point during his marriage to Mother. Such
action would have required Mother’s consent. By eliminating this consent
requirement after his divorce from Mother, the Majority gives him a right he
would not have had while he was her spouse. With all due respect, the
Majority’s extension of K.N.L. to a stepparent adoption leads to an “absurd”
interpretation of the Adoption Act. See Commonwealth v. Humphrey, 283
A.3d 275, 289 (Pa. 2022) (“When interpreting statutory provisions, we
presume that the General Assembly does not intend a result that is absurd,
impossible of execution, or reasonable.” (citing 1 Pa.C.S.A. § 1922(1))).
I recognize Former Stepfather has been in the Child’s life since her birth. It
may seem cruel – and certainly not in the Child’s best interests – if Mother
severed the relationship between the Child and the Former Stepfather. As I
discuss below, however, this inequity does not arise, because in my view, the
custody rights of an in loco parentis former partner survive a stepparent
adoption like this one.
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to intervene, thereby effectively denying it. Intervention to file a competing
adoption petition would not be appropriate, as I explained above. However,
intervention to block Current Stepfather’s adoption of the Child presents a
different question, which requires a separate analysis. On appeal, Former
Stepfather argues he had standing to intervene, because he had an interest
in the litigation as an in loco parentis individual with custody rights. To answer
the intervention question, we must determine whether Former Stepfather has
standing.
K.N.L. set forth the following standing principles. “Standing relates to
the capacity of an individual to pursue a particular legal action, and requires
the petitioning litigant to be adversely affected, or aggrieved, in some way.”
K.N.L., 284 A.3d at 136 (citing Trust Under Will of Ashton, 260 A.3d 81,
88 (Pa. 2021) and Wm. Penn Parking Garage, Inc. v. City of Pittsburgh,
346 A.2d 269, 280 (Pa. 1975) (“a 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”)).
As for standing to file an adoption petition in an agency case, the Court
held: “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.” Id. at 150.
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In the context of a petition to intervene in an adoption case, the Court
explained that a nonparty who seeks to intervene 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. K.N.L., 284 A.3d at 142-43 (citing Hess, 608 A.2d at
12; Pa.R.C.P. 23278). Thus, the Court concluded that if the would-be
intervenor can establish an in loco parentis status, then the individual has also
established the “recognized legal interest” for purposes of Rule 2327. Id. at
144. See also K.N.L., 284 A.3d at 152-53 (Donohue, J. Concurring).
In K.N.L., the Court remanded for a new hearing. At that hearing, if
the appellant could establish his in loco parentis status, then he would have a
“legally enforceable interest” that would be “affected” by the pending action
involving the foster family’s adoption petition. In such a scenario, the
appellant’s petition to intervene would be granted under Rule 2327(4). See
id., at 151; see id. at 152 (Donohue, J. Concurring).
Again, the difference between the K.N.L. and the instant matter is
paramount. In K.N.L., the appellant’s recognized legal interest would be
affected by the foster family’s adoption; here, by contrast, Former
Stepfather’s recognized legal interest would not be affected by the Current
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8 Rule 2327(4) provides: “At any time during the pendency of an action, a
person not a party thereto shall be permitted to intervene therein, subject to
these rules if: (4) the determination of such action may affect any legally
enforceable interest of such person whether or not such person may be bound
by a judgment in the action.” Pa.R.C.P. 2327(4).
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Stepfather’s adoption. As a result, Former Stepfather’s petition to intervene
fails under Rule 2327(4).
To explain, in K.N.L., the appellant’s interest would be “affected” by the
adoption by the foster parents, because such an adoption would ultimately
terminate the appellant’s future right to custody of the child, pursuant to 23
Pa.C.S.A. § 5326 (“Effect of an adoption”). The Court explained: “[The Child
Custody Act] 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.’” Id. at 143 (citing 23 Pa.C.S.A. §§ 5324(a), 5326). “[I]f appellant
ever had any right to assert in loco parentis standing in a custody matter, it
would be extinguished upon entry of an adoption decree.” Id. at 144 (citing
23 Pa.C.S.A. § 5326; E.T.S. v. S.L.H., 54 A.3d 880 (Pa. Super. 2012) (under
Section 5326, former live-in romantic partner of the children’s custodial aunt
lost in loco parentis right to seek custody of the children when aunt adopted
the children)).
Here, because this matter involves a stepparent adoption, the
application of these principles produces a different result. Assuming Former
Stepfather stands in loco parentis, he would have a demonstrable “legally
enforceable interest” under Rule 2327(4). As such, Former Stepfather has
standing to intervene so long as his legally enforceable interest is “affected”
by the underlying adoption proceeding involving Current Stepfather and
Mother.
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Critically, Former Stepfather’s recognized legally enforceable interest –
that is, his in loco parentis custody rights – are not affected by the Current
Stepfather’s adoption of the Child. I conclude that the custody rights of
Former Stepfather, afforded to him by Mother in their divorce decree (and as
an implicit result of his in loco parentis status), survive the Current
Stepfather’s adoption of the Child.
Because this adoption involves a stepparent, as opposed to a third-party
adoption by a foster parent (as in K.N.L.) or by an aunt (as in E.T.S.), the
effect of the adoption yields a different result under Section 5326 of the Child
Custody Act. As the Supreme Court observed in K.N.L., the effect of an
adoption by an unrelated third party terminates all prior rights. However, I
believe one’s in loco parentis custody rights survive an adoption when the
child is adopted by a stepparent.
The Child Custody Act addresses the effect of an adoption:
Any rights to seek physical custody or legal custody rights
and any custody rights that have been granted under
section 5324 (relating to standing for any form of physical
custody or legal custody) or 5325 (relating to standing for
partial physical custody and supervised physical custody) to
a grandparent or great-grandparent prior to the adoption of
the child by an individual other than a stepparent,
grandparent or great-grandparent shall be automatically
terminated upon such adoption.
23 Pa.C.S.A. § 5326 (“Effect of adoption”) (emphasis added).
Although the statute allows grandparents and great-grandparents, who
received custody rights under Section 5324, to retain those rights following a
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stepparent adoption, the statute is notably silent regarding those third-parties
who received in loco parentis custody rights under Section 5324(2). While
our Supreme Court was clear that such rights will be terminated following an
adoption by a foster parent, K.N.L., 284 A.3d at 144, it does not follow that
such in loco parentis custody rights will necessarily be extinguished by a
stepparent adoption. The statute itself does not expressly provide for the
termination of these rights in a stepparent adoption.
In a stepparent adoption, one parent retains their rights. Thus, it follows
that because the parent’s rights remain, the rights of the individual, who
received in loco parentis status from the parent, also remain. By contrast,
after the rights of both parents have been terminated, the rights of an
individual who received in loco parentis status from those parents are
automatically terminated upon adoption by foster parents. K.N.L., 284 A.3d
at 143-44 (citing 23 Pa.C.S.A. § 5326).
It would be unreasonable to conclude, in the absence of clear authority,
that a stepparent adoption will automatically sever the relationship between
a child and a parent’s former partner who has in loco parentis status – a former
partner who had supported and nurtured the child, and considered the child
as their own. An automatic severance would certainly not be in a child’s best
interests.
Moreover, the Child Custody Act is perfectly equipped to address any
potential acrimony between the parent, the adoptive parent, and the former
partner, while simultaneously protecting the best interests of the child. See
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23 Pa.C.S.A. §§ 5328(a) (relating to the custody factors), 5327(b)(relating to
the presumption between parents and third parties).9
Indeed, the automatic termination of in loco parentis custody rights
seems contrary to precedent. In T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001),
the Court considered whether the former same-sex partner of the mother had
in loco parentis standing to seek custody of the child. The mother had argued
that, because the former partner lacked standing to adopt the child – given
the fact that this case predated the legalization of same-sex marriage – the
former partner necessarily lacked standing to seek in loco parentis custody.
The Court disagreed. T.B., 786 A.2d at 918-19. “The ability to marry the
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9 It would not be the case that the child would be left with “three legal
parents.” See Majority Opinion at 19 (citing In re: Adoption of R.A.B., 1364
EDA 2007 (Pa. Super. 2008) (unpublished memorandum)). Rather, such a
holding would simply mean that a third individual has custody rights – a
possibility not foreign to the Child Custody Act. See, e.g., 23 Pa.C.S.A. §§
5234(2), 5325 (relating to grandparent standing).
I note further that the Majority’s reliance on R.A.B. is misguided for two
reasons. First, R.A.B. was decided in an unpublished memorandum in 2007.
Per 210 Pa. Code § 65.37, only non-precedential decisions filed after May 1,
2019, may be cited for their persuasive value. See also Pa.R.A.P. 126(b).
An unpublished memorandum decision filed prior to May 2, 2019, shall not be
relied upon or cited by a Court or a party in any other action or proceeding
(except in certain circumstances which are not present here). See 210 Pa.
Code § 65.37(b).
Second, R.A.B. was predicated upon the prior iteration of the Child Custody
Act, specifically 23 Pa.C.S.A. § 5314 (“Exception for adopted children)
(repealed). The text of Section 5314 was far more hostile to previously-held
custody rights than the current Section 5326. The former Section provided:
“Any visitation rights granted pursuant this section prior to the adoption of
the child shall be automatically terminated upon such adoption.” 23 Pa.C.S.A.
§ 5314 (emphasis added).
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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.” Id. at 919. “[A] biological
parent’s rights ‘do not extend to erasing a relationship between her [former]
partner and her child which she voluntarily created and actively fostered
simply because after the parties’ separation she regretted having done so.’”
Id. (Citing J.A.L. v. E.P.H., 682 A.2d 1314, 1322 (Pa. Super. 1996)).
Although T.B. did not involve the effect of an adoption under Section 5326,
its holding suggests: 1) Former Stepfather’s inability to adopt the Child has
no effect on his existing custody rights; and 2) Mother lacks the authority to
automatically extinguish the long-standing relationship she fostered between
the Child and Former Stepfather.
Here, the stepparent adoption does not impact Mother’s parental rights.
Because her rights remain unchanged, so do Former Stepfather’s in loco
parentis custody rights. In my view, Former Stepfather’s custody rights
survive the Current Stepfather’s adoption of the Child. Because Former
Stepfather retains the ability to exercise and enforce his custody rights, he is
not aggrieved by the adoption proceeding between Mother and Current
Stepfather. Thus, he lacks standing to intervene. 10
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10I do not believe Current Stepfather’s ascension to legal parenthood has any
impact on this analysis. For instance, had the petitioner in this case been a
grandparent, Current Stepfather would not have the authority to deny a
grandparent standing to seek custody under Section 5326. Thus, his opinion
(Footnote Continued Next Page)
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In summation of my second point, I conclude that it is proper to apply
standing principles to resolve Former Stepfather’s petition to intervene. In
doing so, I recognize that Former Stepfather has a legally enforceable interest.
Nonetheless, I conclude that this legally enforceable interest was not affected
by the Current Stepfather’s adoption, because his in loco parentis custody
rights survive a stepparent adoption. As such, Former Stepfather has no
standing to intervene, because he is not an aggrieved party. The orphans’
court properly denied his intervention petition.
III. Appointment of counsel
As a final housekeeping measure, I part ways with the Majority’s
decision to remand for the appointment of counsel and/or a guardian ad litem
for the Child for the adoption proceeding. I do not believe that such an
appointment is mandatory under the Adoption Act. In the context of an
adoption proceeding, the appointment is merely discretionary. Because
Former Stepfather did not raise this question during the proceedings below,
this Court lacks authority to address this issue sua sponte.
The Adoption Act provides:
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about whether Former Stepfather’s rights survive the adoption is of no
moment. Of course, Current Stepfather necessarily obtains parental rights as
a result of his adoption of the Child. Current Stepfather may utilize those
rights in custody litigation, where he may argue that it would not be in the
Child’s best interest for Former Stepfather to have custody. See 23 Pa.C.S.A.
§ 5328(a). In such an action, he would be entitled to the presumption
afforded to natural parents. See 23 Pa.C.S.A. § 5327(b). The only legal
impact of Current Stepfather’s adoption is that Current Stepfather becomes
the Child’s legal parent in place of Biological Father; Former Stepfather’s rights
are not impacted by this substitution.
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(a) Child.--The court shall appoint counsel to represent
the child in an involuntary termination proceeding when the
proceeding is being contested by one or both of the parents.
The court may appoint counsel or a guardian ad litem to
represent any child who has not reached the age of 18 years
and is subject to any other proceeding under this part
whenever it is in the best interests of the child. No attorney
or law firm shall represent both the child and the adopting
parent or parents.
23 Pa.C.S.A. § 2313(a) (emphasis added).
Supreme Court has explicitly addressed the difference between the
words of “shall” and “may” in Section 2313(a).
The language of Section 2313(a) at issue in this contested
[termination of parental rights (TPR)] case reads, in
pertinent part, “The court shall appoint counsel to represent
the child ....” “The word ‘shall’ by definition is mandatory
and it is generally applied as such.” Chanceford Aviation
Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors,
923 A.2d 1099, 1104 (2007)(citations omitted). When a
statute is unambiguous, “shall” must be construed as
mandatory. Id. Here, the use of “shall” is unambiguous and
hence, mandatory. The statutory language does not suggest
anything other than the general meaning of the word. By
contrast, the statute's second sentence uses the term “may”
in connection with “any other proceeding” (i.e., anything
other than a contested TPR) evidencing the fact that our
General Assembly knows well how to use non-mandatory
language when it wishes to do so. The lawmakers codified a
mandatory appointment of counsel for contested TPR cases,
and, in the very next sentence, codified a
discretionary provision for other proceedings. There is
no ambiguity in the statute. We may not manufacture one.”
(footnote omitted).
In re Adoption of L.B.M., 161 A.3d 172, 179-80 (Pa. 2017) (emphasis
added).
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Thus, Section 2313(a) only mandates the appointment of counsel during
the involuntary termination proceeding involving Biological Father. That
proceeding is now over. Only Current Stepfather’s adoption petition remains.
Although the orphans’ court had discretion to appoint counsel or a guardian
ad litem for the duration of the adoption proceedings – and I would encourage
the court to do so in future contested adoption proceedings – the court was
under no obligation to make such an appointment. I need not discuss the
Majority’s interpretation of our binding precedents, for they all concern the
first clause of Section 2313(a) (relating to termination proceedings) and thus
are readily distinguishable. Here, the Majority’s appointment is predicated
upon the second clause. As our Supreme Court already clarified, this second
clause is a “discretionary provision.” L.B.M., 161 A.3d at 179.
Moreover, we may not review the orphans’ court decision to not appoint
representation for the Child in this adoption proceeding. Former Stepfather
did not raise an objection to or submit any request regarding the Child’s lack
of representation. As a result, the issue is waived. See Pa.R.A.P. 302(a)
(providing for waiver of issues not first raised in the trial court); see also
Fillmore v. Hill, 665 A.2d 514, 515-516 (Pa. Super. 1995) (“[I]n order to
preserve an issue for appellate review, a party must make a timely and specific
objection at the appropriate stage of the proceedings before the trial court.”)
(Citation omitted). Although our Supreme Court has clearly held that the
issue of appointment of counsel for a child in a contested termination case is
not waivable and may be raised sua sponte by an appellate court (see In re
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Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020)), the same holding has not
been applied in an adoption case. As such, I conclude that the issue is waived
and that this Court lacks authority to raise it sua sponte.
In sum, I respectfully dissent for the following reasons: 1) Mother’s
withheld consent under 23 Pa.C.S.A. § 2711(a)(3) renders Former
Stepfather’s adoption petition not cognizable as a matter of law and a remand
is unnecessary because he cannot establish a prima facie case for adoption;
2) Former Stepfather lacks standing to intervene in this action, because his in
loco parentis custody rights are not affected by the Current Stepfather’s
adoption; 3) Section 2313(a) does not mandate the appointment of counsel
and/or a guardian ad litem in an adoption proceeding; we may not review the
lower court’s discretionary decision to not appoint representation, because
Former Stepfather failed to preserve the issue. Thus, I would affirm the
orphans’ court’s decision to dismiss Former Stepfather’s petitions and uphold
Current Stepfather’s adoption decree.
Judge Olson joins the dissenting opinion.
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