K.W. v. S.L. and M.L. v. G.G.

J-A03022-17
2017 Pa. Super. 56
K.W. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
S.L. & M.L. :
:
:
v. :
:
G.G. : No. 1372 MDA 2016
Appeal from the Order Entered August 8, 2016
in the Court of Common Pleas of York County
Civil Division at No: 2015-FC-002204-03
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
OPINION BY STABILE, J.: FILED MARCH 06, 2017
K.W. (“Father”) appeals from the order entered August 8, 2016, in the
Court of Common Pleas of York County, which denied his preliminary
objections and granted S.L. and M.L. (“Appellees”) in loco parentis standing
to pursue custody of Father’s minor daughter, M.L. (“Child”). After careful
review, we vacate and remand for further proceedings consistent with this
opinion.1
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1
In his brief, Father indicates that he also is challenging the interim custody
order entered November 17, 2015, in Centre County. Father’s brief at 13,
16. Assuming that we have jurisdiction to address the November 17, 2015
order, our review of the record reveals that it is no longer in effect, as it was
replaced by an interim custody order entered April 12, 2016. Thus, any
challenge to that order is now moot.
J-A03022-17
Child was born in August 2015 to Father and G.G. (“Mother”). Father
and Mother dated briefly from October 2014 until approximately December
12, 2014. N.T., 8/1/16, at 7. While the details are not entirely clear from
the record, it appears that Mother discovered that she was pregnant with
Child shortly after her separation from Father. Id. at 38. However, Mother
did not directly inform Father of her pregnancy. Id. at 37-40. In March
2015, Mother contacted Bethany Christian Services (“BCS”) in order to place
Child for adoption. Id. at 43. BCS placed Child in the care of Appellees two
days after her birth. Id. at 71.
Meanwhile, BCS attempted to locate Father. While Mother provided
BCS Father’s name, she could not initially provide any other contact
information. Id. at 43. Mother later assisted BCS in identifying Father’s
Facebook profile. Id. at 44. BCS first attempted to contact Father on July
29, 2015, by sending him a Facebook message. Id. at 43. BCS also sent
friend requests to Father on July 30, 2015, and August 14, 2015. Id. at 46.
Father did not respond to the message sent by BCS, nor did he accept the
friend requests.2 Id. at 46-47. BCS made several other attempts at
contacting Father, including calling the employer listed on Father’s Facebook
profile, without success. Id. at 48-49. Finally, with Mother’s assistance,
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2
Father testified that BCS sent him messages, but that he did not notice
them because his Facebook account treated them as “spam.” N.T., 8/1/16,
at 13-14. BCS employee, Jessica Crawford, could not confirm or deny
whether Father actually viewed any messages. Id. at 46.
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BCS located several of Father’s last known addresses. Id. at 49, 64. BCS
sent letters to Father on September 16, 2015. Id. at 64. Father received
these letters on September 19, 2015, and contacted BCS to set up a
meeting. Id. at 11-12. On approximately October 14, 2015, Father
informed BCS that he did not want Child to be adopted. Id. at 58.
The subsequent procedural history of this matter is convoluted. On
October 30, 2015, Father filed a custody complaint in Centre County,
naming Mother as the only defendant.3 Father also filed an emergency
petition on November 6, 2015, in which he requested that BCS be ordered to
provide him with the current whereabouts of Child, among other things. The
Centre County trial court issued an order granting Father’s petition that
same day. On November 17, 2015, the Centre County court entered an
order transferring Father’s case to Lycoming County, as well as an interim
custody order awarding primary physical custody of Child to Appellees, and
awarding partial physical custody to Father as agreed upon by the parties.
On November 25, 2015, Appellees filed a custody complaint in York
County. That same day, Appellees filed a notice of appeal from the Centre
County trial court’s order transferring Father’s case to Lycoming County. In
their concise statement of errors complained of on appeal, Appellees alleged
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3
Father resides in Lycoming County, Mother resides in Northumberland
County, and Appellees reside in York County. It appears that Father filed his
complaint in Centre County because BCS has its place of business there.
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that the Centre County court erred by failing to join them as necessary
parties to the custody action, and by failing to transfer the case to York
County, on the basis that York County is Child’s “home county” pursuant to
the Pennsylvania Rules of Civil Procedure. By order entered December 17,
2015, the Centre County court rescinded its prior order transferring the case
to Lycoming County, and transferred the case to York County instead.
Appellees then discontinued their appeal.
On February 26, 2016, Father filed preliminary objections to Appellees’
custody complaint.4 In his preliminary objections, Father argued that
Appellees do not have standing to pursue custody of Child. Specifically,
Father argued that Appellees do not stand in loco parentis to Child, because
he did not consent to Child being placed with Appellees. Appellees filed an
answer to Father’s preliminary objections on March 16, 2016. On March 18,
2016, the York County trial court entered an order dismissing Appellees’
complaint “without prejudice to either party to refile and request another
conciliation conference,” on the basis that the parties’ conciliation conference
was continued and then not rescheduled within the time required by local
practice and procedure. Order, 3/18/16, at 2. On March 21, 2016, Father
filed a praecipe to schedule a new conciliation conference, which the court
granted.
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4
Father attached a copy of a paternity test, dated January 25, 2016,
confirming that he is Child’s biological father.
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On April 4, 2016, Father filed an additional custody complaint in York
County.5 The trial court entered an interim custody order on April 12, 2016,
maintaining primary physical custody with Appellees, awarding Father partial
physical custody during certain weekends, and awarding shared legal
custody to all parties. On May 23, 2016, Father filed a praecipe to list his
preliminary objections for one-judge disposition. On August 1, 2016,
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5
On May 25, 2016, the trial court entered an order consolidating all three
custody complaints. In its opinion, the court provided the following
explanation concerning the procedural posture of this case.
Overall, before this Court are three (3) Custody Complaints
consolidated by agreement of the parties and an Order dated
May 25, 2016. Father filed Preliminary Objections to the second
Custody Complaint which was filed by [Appellees]. [The
Honorable Andrea] Marceca Strong dismissed the second
Custody Complaint filed by [Appellees] approximately thirty-nine
(39) minutes after an Application for Continuance was filed by
the parties for the conciliation conference relating to the second
Custody Complaint. . . . [T]his Court finds that the dismissal on
March 18, 2016[,] of the Custody Complaint filed by [Appellees],
which had been consolidated with Father’s Custody Complaint
upon transfer of Father’s complaint to York County, was in error
and superseded by the Order signed by [York County President
Judge, the Honorable Joseph C.] Adams on March 21, 2016[,]
which rescheduled the conciliation conference relating to
[Appellees’] and Father’s Custody Complaints. Subsequent to
the third Custody Complaint being filed by Father on April 4,
2016, this matter was assigned to the undersigned Judge[,] [the
Honorable Todd R. Platts]. This Court conducted a pre-trial
conference with the parties at which time counsel for all three
parties agreed that the three (3) custody actions should be
consolidated under one caption with Father as the moving party
and that Father’s Preliminary Objections were still pending as to
whether or not [Appellees] had standing in the matter.
Trial Court Opinion, 8/8/16, at 5-6.
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Appellees filed a motion to strike Father’s praecipe for one-judge disposition,
or, in the alternative, preliminary objections to Father’s preliminary
objections.
The trial court held a hearing to address Father’s preliminary
objections on August 1, 2016. Following the hearing, on August 8, 2016,
the court issued an order and opinion denying Father’s preliminary
objections, and granting Appellees in loco parentis standing.6 Father timely
filed a notice of appeal on August 19, 2016, along with a concise statement
of errors complained of on appeal. On September 2, 2016, the court issued
a supplemental opinion, in which it indicated that the reasons for its decision
could be found in the opinion accompanying the August 8, 2016 order, and
that no additional explanation would be necessary.
Before reaching the merits of Father’s appeal, we must first consider
whether the August 8, 2016 order was properly appealable. “‘[S]ince we
lack jurisdiction over an unappealable order it is incumbent on us to
determine, sua sponte when necessary, whether the appeal is taken from an
appealable order.’” Gunn v. Automobile Ins. Co. of Hartford,
Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v.
Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)). It is well-settled that,
“[a]n appeal lies only from a final order, unless permitted by rule or
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6
The order also denied the motion to strike and preliminary objections filed
by Appellees.
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statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013).
Generally, a final order is one that disposes of all claims and all parties. See
Pa.R.A.P. 341(b).
Father concedes that the August 8, 2016 order is not a final order
pursuant to Pa.R.A.P. 341(b). Father’s Brief at 21. Instead, Father insists
that the order is appealable pursuant to the collateral order doctrine. See
Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a
collateral order of a lower court). “A collateral order is an order separable
from and collateral to the main cause of action where the right involved is
too important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably lost.” Pa.R.A.P. 313(b).
Father argues that the August 8, 2016 order meets the requirements
of the collateral order doctrine because it “is collateral to the main issue of
child custody and . . . because it impacts the number of parties who will
participate in the action, and it cannot be delayed until a final order is issued
without being lost.” Father’s Brief at 22. In support of this position, Father
directs our attention to K.C. v. L.A., 128 A.3d 774 (Pa. 2015). Id. Father
contends “there is no meaningful difference” between K.C. and this case.7
Id. at 23.
____________________________________________
7
The trial court did not address the issue of appealability in its opinion
accompanying the August 8, 2016 order, or in its supplemental opinion.
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In K.C., our Supreme Court held that an order denying intervention in
a child custody case due to a lack of standing meets both the first and
second prongs of the collateral order doctrine, as standing is an issue
separable from, and collateral to, the main cause of action in a child custody
case, and because the right to intervene in custody cases implicates
Pennsylvania’s “paramount interest in the welfare of children and, as a
result, in identifying the parties who may participate in child custody
proceedings[.]” K.C., 128 A.3d at 779-80. We agree with Father that the
reasoning employed in K.C. applies with equal force here.
However, we find that K.C. is distinguishable with respect to the third
prong of the collateral order doctrine. In that case, the appellants argued
that their claim would be irreparably lost pursuant to In Re Barnes
Foundation, 871 A.2d 792 (Pa. 2005), in which our Supreme Court held
that an order denying intervention must be appealed within thirty days. Id.
at 778. Our Supreme Court agreed, reasoning that the appellants would be
unable to appeal the order denying their petition to intervene if they waited
until the completion of the underlying custody proceedings. Id. at 780. If
the appellants attempted to appeal from the order denying intervention after
the entry of a final custody order, their appeal would be untimely pursuant
to Barnes. Id. Further, the appellants would not be permitted to appeal
from the final custody order itself, as the fact that they were denied
intervention meant that they were not parties to the custody action. Id.
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Here, in contrast, Father has not been denied intervenor status. Barnes
does not apply, and Father remains a party to the underlying custody action.
Nonetheless, we conclude that Father’s claim will be irreparably lost if
we postpone review until the entry of a final order. Standing in child
custody cases is a matter of constitutional significance. As our Supreme
Court has emphasized, “the right to make decisions concerning the care,
custody, and control of one’s children is one of the oldest fundamental rights
protected by the Due Process Clause” of the Fourteenth Amendment. Hiller
v. Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530
U.S. 57, 120 S. Ct. 2054 (2000)). Mindful of this fundamental right, our law
presumes that parents are fit and make decisions in their children’s best
interest, “absent factors such as abuse, neglect, or abandonment.” D.P. v.
G.J.P., 146 A.3d 204, 214 (Pa. 2016).
Allowing third parties to seek custody of a child burdens the
constitutional rights of parents. Id. at 210, 213. In D.P., our Supreme
Court emphasized the importance of permitting parents to challenge
standing in child custody cases, in order to protect those rights. The Court
reasoned as follows.
Therefore, as illustrated presently, whenever there are contested
issues relating to standing, [the Child Custody Act] gives parents
the ability to bifurcate the proceedings by seeking dismissal for
lack of standing, thereby requiring that any such preliminary
questions be resolved before the complaint’s merits are reached.
The potential for such bifurcation serves an important screening
function in terms of protecting parental rights. As suggested, it
facilitates early dismissal of complaints, thereby relieving
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families of the burden of litigating their merits where a sufficient
basis for standing is absent. Accord Rideout v. Riendeau, 761
A.2d 291, 302–03 (Me. 2000) (plurality) (indicating that, in a
bifurcated procedure, grandparent-standing requirements
“provide[ ] protection against the expense, stress, and pain of
litigation, unless and until the grandparents have convinced the
court that they are among those grandparents who may pursue
visits”). Indeed, a majority of Justices in Troxel recognized that
such litigation can itself impinge upon parental rights, especially
if it becomes protracted through the appellate process. See
Troxel, 530 U.S. at 75, 120 S.Ct. at 2065; id. at 101, 120 S.Ct.
at 2079 (Kennedy, J., dissenting); accord Blixt v. Blixt, 437
Mass. 649, 774 N.E.2d 1052, 1065–66 (2002).15 . . . .
15
Hiller also took notice of the costs associated with custodial
litigation, indicating that grandchildren are not benefitted when
“grandparents force their way into [their] lives through the
courts, contrary to the decision of a fit parent,” and adding that
such consideration was “especially resonant given the strain that
custody litigation places on the children as well as parents and
grandparents[.]” Hiller, 588 Pa. at 359 & n.20, 904 A.2d at 886
& n.20 (citing Troxel, 530 U.S. at 101, 120 S. Ct. at 2079
(Kennedy, J., dissenting) (describing that custody litigation tends
to be disruptive of family life and that, for a parent struggling
financially, the monetary costs can undermine the parent’s plans
for the child’s future)). Other courts have made similar
observations. See, e.g., Conlogue v. Conlogue, 890 A.2d
691, 699 (Me. 2006) (proffering that the strains of litigation
“include various forms of pressures and stress that can pose a
real threat to family well-being” (internal quotation marks and
citations omitted)); Hawk v. Hawk, 855 S.W.2d 573, 577 n.2
(Tenn. 1993) (noting that such stresses include those that arise
from the public disclosure of the details of private, inter-
generational disputes); cf. id. at 576 n.1 (suggesting that court-
ordered grandparent visitation in a family where there is
animosity between the parents and grandparents can intensify
the animosity and, as such, can be contrary to the child’s best
interests).
Id. at 213; see also id. at 218 (Baer, J., concurring and dissenting) (“I
agree with the majority that Subsection 5325(2) implicates parents’
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fundamental right to be free from litigation regarding their children,
especially in light of the nature of child custody litigation and the negative
effects it can have on children.”).
Thus, Father has a fundamental constitutional right to parent Child.
This includes the right to be free of custody litigation involving third parties.
If we quash this appeal and remand to the trial court, Father will be
subjected to extensive litigation involving Appellees, including a custody
hearing and a second appeal on the exact issue he now seeks to raise. Not
only would Father incur a substantial financial burden as a result of this
litigation, but he also could lose months of time caring for and bonding with
Child as the custody hearing and appeals process drags on. Under the
unique circumstances of this case, where Father was deprived of Child by a
private adoption agency without the benefit of a hearing or other due
process protections, this Court could not hope to fully vindicate or restore
Father’s rights by the time of his second appeal. We therefore conclude that
the August 8, 2016 order satisfies all three prongs of the collateral order
doctrine, and that Father’s appeal is properly before us.
We may now turn our attention to the merits of Father’s appeal.
Father raises the following issues for our review.
1. Whether the trial court erred or abused its discretion when it
overruled [Father’s] preliminary objection pursuant Pa.R.C.P. No.
1028(5) averring that [Appellees] lack standing for any form of
custody and its conclusion that [Appellees] stand in loco parentis
to [Child] despite lacking consent of the natural father, [Father?]
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2. Whether the trial court erred or abused its discretion when it
held that [Father] involuntarily or impliedly consented to in loco
parentis status granted [Appellees] by the trial court of Centre
County and failing to recognize that the consent of either parent
may be withdrawn, terminating in loco parentis status[?]
3. The trial court erred or abused its discretion by concluding
that in loco parentis status can be validly conferred by judicial
error.
Father’s Brief at 8-9. While Father asks us to consider three separate
issues, his arguments with respect to each issue are essentially the same.
Father argues that the trial court erred by denying his preliminary objections
and granting Appellees in loco parentis standing to seek custody of Child.
“Threshold issues of standing are questions of law; thus, our standard
of review is de novo and our scope of review is plenary.” Rellick-Smith v.
Rellick, 147 A.3d 897, 901 (Pa. Super. 2016) (quoting Johnson v.
American Standard, 8 A.3d 318, 326 (Pa. 2010)).
Generally, the Child Custody Act does not permit third parties to seek
custody of a child contrary to the wishes of that child’s parents. The Act
provides several exceptions to this rule, which apply primarily to
grandparents and great-grandparents. See 23 Pa.C.S.A. § 5324(3); 23
Pa.C.S.A. § 5325. In fact, unless a person seeking custody is a parent,
grandparent, or great-grandparent of the child, the Act allows for standing
only if that person is “in loco parentis.” 23 Pa.C.S.A. § 5324(2).
“The term in loco parentis literally means ‘in the place of a parent.’”
Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005) (citing Black's Law
Dictionary, 791 (7th Ed. 1991)). A person stands in loco parentis with
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respect to a child when he or she “assum[es] the obligations incident to the
parental relationship without going through the formality of a legal adoption.
The status of in loco parentis embodies two ideas; first, the assumption of a
parental status, and, second, the discharge of parental duties.” Id. (quoting
T.B. v. L.R.M., 786 A.2d 913, 916–17 (Pa. 2001)). Critical to our discussion
here, “in loco parentis status cannot be achieved without the consent and
knowledge of, and in disregard of[,] the wishes of a parent.” E.W. v. T.S.,
916 A.2d 1197, 1205 (Pa. 2007) (citing T.B., supra).
Instantly, the trial court found that Appellees stand in loco parentis
with respect to Child, because they have assumed parental status and
discharged parental duties on Child’s behalf since shortly after her birth.
Trial Court Opinion, 8/8/16, 6-8. The court reasoned that Father gave his
implied consent to Appellees’ in loco parentis standing because he did not
express interest in parenting Child until almost a month after being informed
that she was residing with a prospective adoptive family. Id. at 8.
Father contends that the trial court erred because he did not expressly
consent to Appellees’ in loco parentis standing, and because implied consent
is not permissible under Pennsylvania law. Father relies on B.A. v. E.E. ex
rel. C.E., 741 A.2d 1227 (Pa. 1999). In that case, the subject child, M., was
born on January 4, 1996, to two teenage parents. Id. at 1228. The day
after M.’s birth, her mother, E., gave custody of M. to Genesis of Pittsburgh,
an adoption agency. Id. Genesis placed M. with prospective adoptive
parents and E. signed a consent to adoption form. Id. Genesis forwarded a
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similar consent to adoption form to M.’s father, A., but he refused to sign.
Id. Subsequently, on February 26, 1996, A. and his mother filed a
complaint for primary physical custody of M. Id. M.’s prospective adoptive
parents then filed a motion to intervene in the custody proceedings, which
the trial court granted on the basis of their in loco parentis standing. Id.
Following a custody hearing, the court awarded primary physical custody of
M. to her prospective adoptive parents. Id. Father appealed the court’s
determination and this Court affirmed. Id. Our Supreme Court then
reversed this Court, vacated the order granting primary physical custody to
M.’s prospective adoptive parents, and remanded the matter for a new
custody hearing. Id. at 1229. The Court reasoned as follows.
Normally, a third party may challenge custody only through
dependency proceedings. The Juvenile Act, which governs
dependency proceedings, defines a dependent child, inter alia,
as “A child who is without proper parental care or control,
subsistence, education as required by law, or other care or
control necessary for his physical, mental or emotional health, or
morals.” 42 Pa.C.S. § 6302. In other words, in order for a third
party to interfere in a natural parent’s custody of his child, the
third party would have to show in a dependency proceeding that
the child is not properly cared for. If the third party were able to
prevail on that issue, then the third party could intervene in a
custody proceeding. As Superior Court stated in Cardamone v.
Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995): “[U]nless the
natural parents’ prima facie right to custody is successfully
overcome via the dependency proceedings, this court cannot
confer standing upon third parties to interfere with the parent
child relationship.” 659 A.2d at 581.
An exception to this rule is that where the third parties
stand in loco parentis, i.e., where the third parties “assumed
obligations incident to the parental relationship,” id., the third
party may intervene in a custody proceeding. However, “a third
party cannot place himself in loco parentis in defiance of the
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parents’ wishes and the parent/child relationship.” Gradwell v.
Strausser, 416 Pa.Super. 118, 610 A.2d 999, 1003 (1992).
The record in this case establishes that A attempted to
gain custody of his child from shortly after the child was born
until the present. He opposes the adoption and he seeks
custody of the child himself. It is plain that [the prospective
adoptive parents] retain custody of his child in defiance of his
wishes. The lower courts were in error, therefore, in conferring
standing upon the prospective adoptive parents.
Id. at 1228-29 (footnote omitted).
Appellees attempt to distinguish B.A. by citing In re C.M.S., 884 A.2d
1284 (Pa. Super. 2005), appeal denied, 897 A.2d 1183 (Pa. 2006). In that
case, the father, D.E.H., Jr., visited C.M.S. in the hospital on one occasion
shortly after her birth, but otherwise made no effort to be involved in her
life. Id. at 1285. Meanwhile, C.M.S.’s mother arranged for her adoption
without D.E.H., Jr.’s, consent. Id. About a year later, C.M.S.’s prospective
adoptive parents filed a petition to involuntary terminate D.E.H., Jr.’s,
parental rights, which the trial court denied. Id. at 1285. The prospective
adoptive parents appealed, and this Court reversed, concluding that the trial
court abused its discretion by failing to terminate D.E.H., Jr.’s, parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (6). Id. We then
remanded the case for consideration of 23 Pa.C.S.A. § 2511(b). Id. at
1286. After remand, the court terminated D.E.H., Jr.’s, parental rights, and
he appealed. Id. D.E.H., Jr., challenged the prospective adoptive parents’
in loco parentis standing on the basis that he did not consent to their
adoption of C.M.S. Id. at 1288-89. This Court concluded that D.E.H., Jr.,
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could no longer challenge standing, because we “implicitly determined” that
the prospective adoptive parents had standing during the first appeal, and
the prospective adoptive parents’ standing was now the law of the case.8
Id. at 1288. In the alternative, this Court concluded that C.M.S.’s
prospective adoptive parents had proper in loco parentis standing, because
they assumed and discharged parental duties on behalf of C.M.S. for a year
while D.E.H., Jr., did nothing. Id. at 1289-90. We explained that denying in
loco parentis standing to the prospective adoptive parents “would require us
to ignore not only the reality of this child’s life, but also [D.E.H., Jr.’s,]
failure to establish any sort of bond with his newborn child or to provide in
any way for her care.”9 Id. at 1289.
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8
This rationale was later called into question in In re Adoption of
Z.S.H.G., 34 A.3d 1283, 1288 n.4 (Pa. Super. 2011), reargument denied
(Feb. 21, 2012).
9
We relied on McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), appeal
denied, 782 A.2d 547 (Pa. 2001). In McDonel, the appellant, Spangler,
denied paternity and made little effort to be involved in the life of his
daughter, C.S., for three and a half years. Id. at 1103. During that time,
C.S. and her mother, Sohn, stayed frequently with C.S.’s aunt and uncle, the
McDonels. Id. Sohn also executed a power of attorney, granting “in loco
parentis powers” to the McDonels. Id. at 1105. Spangler eventually filed
for partial physical custody of C.S., and visited with her one weekend per
month. Id. at 1103. About a year and half later, Sohn committed suicide.
Id. While Sohn was in the hospital on life support, the McDonels filed for
custody. Id. At the conclusion of the custody proceedings, the trial court
awarded primary physical custody and shared legal custody of C.S. to the
McDonels. Id. at 1104. Spangler argued on appeal that the McDonels
lacked in loco parentis standing, because he did not consent to their role in
C.S.’s life. Id. at 1106. This Court rejected Spangler’s argument, reasoning
(Footnote Continued Next Page)
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After review, we agree with Father that the facts of B.A. are
essentially identical to the facts of this case, and we see no reasonable basis
upon which to distinguish them. While the trial court concluded that Father
gave his implied consent to Appellees’ in loco parentis standing, our research
does not reveal that this Court, or our Supreme Court, has held that consent
to in loco parentis standing can be implied. In C.M.S., this Court explained
that D.E.H., Jr., demonstrated his consent by failing to be involved in
C.M.S.’s life for a year. D.E.H., Jr.’s, consent was not implied; he acted in a
manner consistent with consent. In contrast, the father in B.A., A., acted in
a manner inconsistent with consent by filing for custody of M. less than two
months after her birth. Here, Father also acted in a manner inconsistent
with consent, by promptly informing BCS that he did not want Child to be
adopted less than a month after being notified that she was residing with
prospective adoptive parents, and by filing a custody complaint shortly
thereafter. We therefore conclude that Father did not consent to Appellees
attaining in loco parentis status with respect to Child, and that the trial court
erred by denying Father’s preliminary objections.
_______________________
(Footnote Continued)
that a parent cannot claim that a party is acting in loco parentis in defiance
of his or her wishes unless that parent’s actions “necessarily would conflict
with a finding that a third party achieved in loco parentis status. Here,
Spangler initially denied paternity, had little contact with C.S., and no
contact with the McDonels and so could not have been an obstruction to the
McDonels’ developing relationship with C.S.” Id. (footnote omitted).
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In reaching this conclusion, we stress once again that Father has a
fundamental constitutional right to care for Child, and that he is presumed to
be a fit parent. Hiller, 904 A.2d at 885; D.P., 146 A.3d at 214. If a parent
is unfit, this Commonwealth has a well-established system for adjudicating
children dependent, terminating parental rights, and placing children in pre-
adoptive homes. However, these remedies are available only if a parent is
provided essential due process protections, including notice, a hearing, and
proof by clear and convincing evidence. Here, we note with disapproval,
Father has been deprived of Child without any evidence in the record that he
is an unfit parent, and without the benefit of due process protections.
BCS’s decision to place Child for adoption without Father’s consent is
particularly troubling. Mother first contacted BCS in March 2015. BCS then
made no effort at all to contact Father for approximately four months, until
July 29, 2015. By the time BCS sent letters to Father on September 16,
2015, Child was already residing with Appellees. Because of BCS’s inaction,
Father has now spent well over a year fighting for custody of Child. In
addition, Appellees have spent over a year and a half hoping to adopt Child,
only to have their hopes dashed by this decision. While we are sympathetic
to Appellees, who have no doubt expended immense time and effort caring
for Child and ensuring her well-being during this difficult process, our
sympathies must give way to Father’s fundamental constitutional rights.
Based on the foregoing, we conclude that the trial court erred by
denying Father’s preliminary objections and granting Appellees in loco
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J-A03022-17
parentis standing on an implied basis with respect to Child. We therefore
vacate the August 8, 2016 order, and we remand this matter to the court to
enter an order granting Father’s preliminary objections, and to conduct
further custody proceedings consistent with this opinion. 10
Order vacated. Case remanded for further proceedings consistent with
this Opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2017
____________________________________________
10
The remaining parties in this matter are Father and Mother. Mother did
not file a separate brief in connection with this appeal, but joined the brief
filed by Appellees. It is not clear what her position is in terms of sharing
custody of Child with Father. When addressing custody on remand, the trial
court should be sure to consider Mother’s rights.
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