BA v. EE ex rel. CE
| Decision Date | 24 November 1999 |
| Citation | 741 A.2d 1227,559 Pa. 545 |
| Parties | B.A. and A.A., Appellants, v. E.E., A Minor, by and through Her Parents and Natural Guardians, C.E. and D.E. v. D. and C., proposed adoptive parents, Appellees. |
| Court | Pennsylvania Supreme Court |
Mary E. Schellhammer, Southern Allegheny Legal Aid, Johnstown, for B.A. & A.A.
Linda Rovder Fleming, Johnstown, for D. & C.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
The issue raised in this case is whether prospective adoptive parents, who have had the child in their care and custody for nine or ten months following her birth, may intervene in a custody proceeding brought by the child's natural father, who is seeking custody of the child, when the natural mother has placed the child in the prospective adoptive parents' custody and favors their adoption of the child.
The child, M, was born out of wedlock on January 4, 1996. Her parents, E and A, were school children aged sixteen and eighteen respectively, living with their parents. During the later stages of her pregnancy, E took up residence in Genesis House in Pittsburgh, a facility which is operated by Genesis of Pittsburgh, an adoption agency for women who intend to place their child for adoption. The day after the child was born, E executed a document granting custody of the child to Genesis and allowed it to seek adoptive parents for the child. Genesis immediately placed the child with D and C, the prospective adoptive parents. The child has remained with these prospective adoptive parents since that time. E executed a consent to the adoption and a similar consent was forwarded to A, who refused to consent.
D and C initiated an adoption proceeding, the status of which is currently uncertain, and on February 26, 1996, A and his mother filed a complaint for primary physical custody. D and C filed a motion to intervene, and on July 9, 1996, the trial court granted their motion on the grounds that they stood in loco parentis to the child. The trial court heard testimony on the issue of custody, and on November 13, 1996 awarded primary physical custody to D and C. A and his mother appealed.
Superior Court affirmed, holding that the natural mother's decision to grant custody to the Genesis agency, who in turn granted it to D and C, conferred upon D and C in loco parentis status, and that considering the child's physical, intellectual, moral and spiritual well-being, the trial court did not err in awarding custody to D and C.
The issue in this appeal from the decision of Superior Court is whether it was error to allow the prospective adoptive parents the right to intervene by conferring upon them in loco parentis status. 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 581.1
An exception to this rule is that where the third parties stand in loco parentis, i.e., where the third parties have "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 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 D and C 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.
The order of the Superior Court is reversed and the trial court's order granting custody to D and C is vacated. The case is remanded for a hearing on the custody petition filed by A and his mother.
Justice NIGRO files a concurring opinion, joined by Justice SAYLOR, who also joins the majority opinion.
I concur with the Majority Opinion as I agree that D. and C. did not achieve in loco parentis status and therefore lack standing to contest the natural father's custody petition. I write separately merely to clarify how they fell short of the mark to achieve such status.
We granted allocatur in this case on the limited issue as to whether third parties can attain in loco parentis status in custody proceedings when one parent contests the third party's adoption of his child.
Gradwell v. Strausser, 416 Pa.Super. 118, 125, 610 A.2d 999, 1003 (1992) (quoting Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968)). Thus, the third party seeking to establish in loco parentis status must both assume parental status and discharge parental duties. A third party, however, cannot unilaterally assume parental status where the natural parents defy such intervention.
Here, the natural mother defied the express wishes of the natural father by giving custody of the baby and consent to place her for adoption to Genesis, an adoption agency. Genesis, in turn, matched the baby to prospective adoptive parents D. and C. and gave immediate physical custody to them. Without the natural father's consent, I find that neither Genesis nor D. and C. had the proper authority to assume the role of parent. The stakes are simply too high and the rights of the non-consenting parent too substantial to allow one parent to confer in loco parentis status on a third party. D. and C. therefore, fail to meet the first prong of in loco parentis status, since they assumed the role of parent in defiance of the natural father.
Since D. and C. gained physical custody of M based on the adoption consent form signed only by the baby's mother and in direct defiance of the baby's father they did not validly assume parental status and they therefore did not have standing to contest the natural father's petition for custody.2
I dissent and would hold that under the circumstances of this case, where the natural father is aware of the natural mother's placement of the child for adoption and the prospective adoptive parents in fact assumed primary parenting responsibility, the prospective adoptive parents stand in loco parentis to the child and have standing to intervene in the custody action brought by the child's natural father.
In holding to the contrary, the majority relies solely upon Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992). In Gradwell, the paternal grandfather of the child contended that pursuant to section 5313 of the Domestic Relations Code,3 he had standing to file a custody action against the child's natural parents. The grandfather had resided with the child and her parents for almost two years and resided with the child without her parents for a period of two months. The child, who was fifteen years old at the time of the proceeding, indicated to the court that she preferred to live with her grandparents.
The trial court dismissed the custody action and the Superior Court affirmed. The court emphasized that section 5313 did not provide a presumption of in loco parentis status for grandparents, but rather was intended to assure continuing contact of the child with the grandparent when a parent is deceased, divorced or separated. See 23 Pa.C.S. § 5301. The court recognized that it had no power to order grandparent visitation where both parents were alive, reside together with the child, and object to visitation.
The court stated:
Without more, a child's preference and the fact that the child and grandparent resided together for a period of time is insufficient to support a finding that [the grandparent] stood in loco parentis and has overcome the parents' prima facie right to custody. A third party cannot place himself in loco parentis status in defiance of the parents' wishes and the parent/child relationship.
Unlike Gradwell, the instant case does not involve a third party's challenge to the custody of a child in an intact family. Here, the party asserting in loco parentis status was given specific authority to parent the child by one of the natural parents. Although the natural father's subsequent opposition to the adoption can not be ignored, it also can not undo the facts that have occurred. Simply put, the prospective adoptive parents have "assumed parental status" and have...
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