Third-Party Standing to Intervene in Adoption

In the Int. of: K.N.L, 2021 WL 4440535 (Pa. Super.) (unreported), allocatur granted Jan. 4, 2022, appeal docket 1 EAP 2022

This case involves the adoption of K.L. (Child) following the termination of the parental rights of the Child’s biological mother and father. Superior Court summarized the background as follows:

The Department of Human Services (“DHS”) initially became aware of Child after Child disclosed sexual abuse allegations against to [sic] L.B. and L.B.’s mother, [R.P.B.], the [c]hild’s legal guardian, in 2015. (N.T. 1/26/2021 at 10). Subsequently, an Order of Protective Custody was obtained, and the Child adjudicated dependent[,] on August 8, [sic] 2015. (Trial Ct Order 8/3/2015). On May 6, 2017, the parental rights as to Biological Mother and Biological Father were involuntarily terminated. (Trial Ct Order 5/6/2017).

Slip op. at 2 (footnote omitted). While the Child was in foster care, Child’s maternal aunt (Maternal Aunt) filed an adoption petition. L.B. filed a motion to intervene in Maternal Aunt’s adoption action, asserting that he and Mother were in a relationship when Child was born, and that he has stood in loco parentis to Child. The trial court held a hearing on L.B.’s motion to intervene and L.B. was the sole witness who testified at the hearing. L.B.’s counsel stated that she had intended to call R.B.P. as a witness, but she discovered that R.B.P. was hospitalized. Both L.B. and Maternal Aunt’s counsel also stated they intended to offer testimony of Maternal Aunt, but Maternal Aunt was unable to connect to the virtual hearing and the judge declined to permit her to testify telephonically, as he could not view her and assess her credibility. The trial court denied L.B.’s motion to intervene, opining:

Adoption hearings are governed by the Adoption Act. 23 Pa.C.S. § 2101. The Adoption Act contains specific provisions that must be followed when a party seeks to adopt a child. In re Adoption of Hess, 530 Pa. 218 (1992). Pursuant to the Adoption Act, after parental rights are terminated, any individual may become an adopting parent after first filing a Report of Intention to Adopt. In re Adoption of Hess, 530 Pa. at 223 (See also 23 Pa.C.S. [§] 2312, 23 Pa.C.S. [§] 2531). The current legal guardian or agency with custody of the [c]hild must consent to the [c]hild’s adoption. Id. For a third party to pursue adoption or visitation, the party must have standing, which can only exist “where legislature has specifically conferred it or where the party stands in loco parentis to the child”. In re N.S., 845 A.2d 884, 886-7 (Pa Super. 2004) (citing In the Matter of the Adoption of A.M.T. and C.C.T., 803 A.2d 203 (Pa[.] Super. 2002)). In any adoption proceeding, the best interest of the child is the most significant consideration. See 23 Pa.C.S. [§] 2902(a). In re Adoption of Hess, 530 Pa. 218 (1992).

    1. [The Trial Court] Properly Found that L.B. Lacked Standing to Intervene.

Generally, a third party must either demonstrate that he or she acts currently in loco parentis to the child or has obtained written consent from the guardian of the child in order to establish standing to file a petition for adoption. 23 Pa.C.S.A. [§] 2711(a)(5); In the Matter of the Adoption of A.M.T. and C.C.T., 803 A.2d 203, 208 (Pa[.] Super 2002) (emphasis added). “The legal status of in loco parentis refers to a person who puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.” In re Adoption of B.R.S., 11 A.3d 541, 547 (Pa. Super 2011). The moving party must prove essential facts to support a conclusion that such a relationship exists. T.B. v. L.R.M., 567 Pa. 222, 228 (2001) (citing Kransky v. Glen Alden Coal Company, 354 Pa. 425 (1946)). Courts have granted in loco parentis status to third parties where the third party and the biological parent resided together as a family unit. In re T.B. v. L.R.M., 567 Pa. at 228. However, the Superior Court has denied in loco parentis status to third parties who have acted solely as a “caretaker”. D.G. v. D.B., 2014 Pa Super 93, 91 A. 3d 706. 711 (Pa Super 2014).

Here, L.B. cannot establish standing as she did not currently act in loco parentis to the Child. Most significantly, Child has not resided with L.B. since March 31, 2015, over 5 years prior to the hearing. (N.T. 1/26/2021 at 15). Since 2015, Child has been in DHS’s custody. (Id.). As a result, L.B. cannot demonstrate that she acts currently in loco parentis. Additionally, several other factors demonstrate that L.B. cannot be granted in loco parentis status. First, L.B. was never named Child’s legal guardian. (Id. at 22). Instead, Child’s biological mother granted L.B.’s mother legal guardianship of Child. (Id. at 23). Although L.B. resided with the Child’s legal [g]uardian, she never assumed legal responsibility for the [c]hild. (Id. at 22). Notably, L.B. was never named as a party to Child’s dependency matter as there was no existing biological or legal relationship to the [c]hild at the time of her removal. (Id.). Second, L.B. and Mother rarely resided together as a family unit, expect [sic] for a very brief period. (Id. at 18). This demonstrates that an existing family unit between biological mother, Child and L.B. never existed. Therefore, as L.B. does not currently act in loco parentis as to Child, this [c]ourt properly found that she lacks standing to file a petition for adoption as to Child.

Slip op. at 29, quoting Trial Court Opinion, 3/24/21, at 4-6.

L.B. appealed to Superior Court, arguing that the trial court erred in denying their motion to intervene despite uncontroverted proof that L.B. stood in loco parentis for the subject child by assuming the role of parent and discharging parental duties. Specifically, L.B. argued that the trial court misinterpreted and misapplied the Supreme Court’s decision in In re Adoption of Hess, 6018 A.2d 10 (1992), in which the court found grandparents had standing to intervene in a child’s adoption proceeding, opining that “[a] child’s interests are best served when all those who demonstrate an interest in his or her welfare are allowed to be heard.” L.B. further argued that the trial court misapplied the Supreme Court’s decision in In re Adoption of A.M.T., 803 A.2d 203 (Pa. Super. 2002) in which the court held that for a third party to have standing they must establish that she either currently acts in loco parentis to the prospective adoptee or has obtained the written consent from the guardian of the child.

Superior Court affirmed the trial court’s conclusion that L.B. did not have standing to intervene in Maternal Aunt’s adoption proceeding because L.B. did not currently act in loco parentis to the Child, and had not resided with L.B. for over 5 years prior to the hearing. Additionally, the court identified “several other factors demonstrate that L.B. cannot be granted in loco parentis status”:

First, L.B. was never named Child’s legal guardian. Instead, Child’s biological mother granted L.B.’s mother legal guardianship of Child. Although L.B. resided with the Child’s legal [g]uardian, she never assumed legal responsibility for the [c]hild. Notably, L.B. was never named as a party to Child’s dependency matter as there was no existing biological or legal relationship to the [c]hild at the time of her removal. Second, L.B. and Mother rarely resided together as a family unit, expect [sic] for a very brief period. This demonstrates that an existing family unit between biological mother, Child and L.B. never existed. Therefore, as L.B. does not currently act in loco parentis as to Child, this [c]ourt properly found that she lacks standing to file a petition for adoption as to Child.

Slip op. at 29-30, quoting Trial Court Opinion, 3/24/21, at 4-6 (internal citations omitted).

Superior Court rejected L.B.’s reliance on the custody statute governing who may file an action for any form of legal or physical custody and cases involving custody actions, which the court found “inapposite to the present case.” Slip op. at 36. Superior Court concluded:

We find that the trial court thoroughly addressed the case law regarding in loco parentis status in an adoption case, as set forth above. The trial court did not misinterpret or misapply that law in reaching its conclusion that Appellant did not establish he had in loco parentis standing to intervene in Maternal Aunt’s adoption action. Accordingly, we find no abuse of the trial court’s discretion or error of law in reaching its conclusion that Appellant lacked in loco parentis standing to intervene in Maternal Aunt’s adoption proceeding, as explained by the trial court in its opinion.

Id.

The Pennsylvania Supreme Court granted allocatur limited to the following issue:

Did the trial court err by misinterpreting and misapplying the law and appellate decisions when it denied Appellant standing to intervene in the adoption of [K.L.] despite uncontroverted proof that Appellant stood in loco parentis for the subject child by assuming the role of parent and discharging parental duties?

 

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