In re Adoption of R.J.S.

• Decision Date: 14 November 2005
• Parties: In re: ADOPTION OF R.J.S., Appeal of: B.A.H. & B.D.H., Adoptive Parents, Appellants.
• Court: Pennsylvania Supreme Court

Page 92

889 A.2d 92

In re: ADOPTION OF R.J.S. Appeal of: B.A.H. & B.D.H., Adoptive Parents, Appellants.

Superior Court of Pennsylvania.

Argued August 30, 2005.

Filed November 14, 2005.

Joseph J. Yeager, Forty Fort, for appellants.

David S. Rasner, Philadelphia, for D.S. & M.S., appellees.

BEFORE: HUDOCK, BOWES and BECK, JJ.

OPINION BY BOWES, J.:

¶ 1 B.A.H. and B.D.H. ("Aunt" and "Uncle," respectively, or "Appellants") appeal the order entered on November 17, 2004, denying and dismissing their petition for adoption. We affirm.

¶ 2 Appellants are the maternal aunt and uncle of R.J.S., born October 5, 1995. Appellant Aunt is a sister to R.J.S.'s mother, R.S. ("Mother"). Tragically, R.J.S.'s biological father, D.S., committed suicide on April 17, 1997. Appellees ("Grandparents"), who live in Lackawanna County, are D.S.'s parents and R.J.S.'s paternal grandparents. R.J.S. lived with Grandparents¹ from his birth until December 31, 1997, when Mother took the child and relocated to Luzerne County. Thereafter, without informing Grandparents, Mother decided that R.J.S. should live with Aunt and Uncle in Luzerne County.

¶ 3 On February 2, 1998, Aunt and Uncle filed a custody complaint in Luzerne County, in which Mother joined, to transfer physical custody of R.J.S. from Mother to Aunt and Uncle. On February 4, 1998, the custody stipulation between Mother and Aunt and Uncle was made an order of court.

¶ 4 Unaware of this prior Luzerne County custody stipulation, Grandparents filed a custody action on February 13, 1998, in Lackawanna County, seeking to confirm their primary physical custody of R.J.S. and alleging their in loco parentis status to the child. The parties at some point agreed that Luzerne County² "had jurisdiction and all matters relating to the custody of [R.J.S.] were to be heard ... in Luzerne County ...." for a determination of custody. Petition to vacate order granting periods of partial custody, 8/31/00, at 1; Supplemental Reproduced Record for Appellees at 35b, Answer to petition to vacate, 11/28/00, at 1. The custody court ordered a comprehensive custody evaluation, the matter proceeded to a Master, and finally, a full custody hearing took place in Luzerne County on February 29, 2000,³ following which the trial court granted Aunt and Uncle legal and primary physical custody of R.J.S. Grandparents received periods of partial custody on alternating weekends and certain stipulated holidays. The February 29, 2000 order also required the parties to keep one another informed regarding major issues affecting R.J.S. See Order, 2/29/2000, at 2. (The parties shall be kept informed of R.J.S.'s "medical, social, educational, religious or other relevant information ... including extracurricular activities and special events so as to enable [Grandparents] to attend...."). A March 3, 2000 order altered the holiday schedule for Grandparents.

¶ 5 On June 5, 2000, Mother filed a petition for permission to relinquish her parental rights in favor of Aunt and Uncle in the Luzerne County Orphans' Court. The court held a hearing on June 21, 2000, wherein Mother testified that because she was a heroin addict, she believed that R.J.S.'s best interests would be served by voluntary relinquishment of her parental rights.⁴ The court granted the petition that day. On August 4, 2000, without notice to Grandparents, Aunt and Uncle filed a petition for adoption of R.J.S. Although paragraph 4 of the adoption petition required identification of the time and places where the child had lived since his birth, Aunt and Uncle pointedly left the question blank. Adoption petition, 8/4/00, at ¶ 4. By this glaring omission, Aunt and Uncle failed to reveal that R.J.S. lived with Grandparents from birth to age two.

¶ 6 On August 23, 2000, the court held a hearing on the petition for adoption. When asked on direct examination to list everyone R.J.S. had lived with since birth, Appellant Aunt testified that R.J.S. had lived with Mother and then with Aunt and Uncle, again failing to apprise the court that the child had resided with Grandparents for the first two years of his life. N.T., 8/23/00, at 4. At the conclusion of the hearing, the court granted the adoption.

¶ 7 On August 31, 2000, Aunt and Uncle filed a petition to vacate the February 29, 2000, and March 3, 2000 orders granting partial physical custody of R.J.S. to Grandparents based upon Appellants' adoption of the child. Significantly, "[I]t was not until after [Aunt and Uncle] filed a Petition to Vacate ... that Grandparents learned of the adoption action." Grandparents' brief at 4. On September 1, 2000, Grandparents immediately filed a petition seeking to hold Aunt and Uncle in contempt, to set aside the adoption, and to transfer custody of R.J.S. to them. On November 14, 2000, the trial court directed Valley Counseling Associates to complete an updated evaluation of the parties and R.J.S. The court issued interim orders on November 16, 2000, and December 15, 2000, granting Grandparents partial custody every third weekend and on certain holidays. On June 26, 2001, concluding that Grandparents had been entitled to notice of the adoption proceedings, the court vacated the adoption decree subject to reinstatement and scheduled a hearing for September 24, 2001, in order to receive testimony on the issue of whether adoption by Aunt and Uncle was in the best interest of R.J.S.

¶ 8 It appears that hearing was not held at that time. On July 24, 2001, Aunt and Uncle filed a notice of appeal from the June 26, 2001 order vacating the August 23, 2000 adoption decree. On August 1, 2001, the court directed Aunt and Uncle to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), but they did not comply. Thereafter, on December 4, 2002, this Court dismissed Aunt and Uncle's appeal for failure to file a docketing statement. See Pa.R.A.P. 3517.⁵

¶ 9 Throughout the next two years, several evaluations and conferences concerning custody of R.J.S. were held. The custody and adoption actions were consolidated on August 27, 2002, in response to Grandparents' petition filed that day; the orphans' court also added Grandparents as additional parties "to the Adoption Petition for purposes of Intervention and/or Contesting same." Order, 8/27/02, at 2. Dr. Lenora Herrmann-Finn,⁶ an evaluative psychologist, concluded that adoption by Aunt and Uncle was in the best interest of the child only if Grandparents remained an integral part of the child's life. The guardian ad litem recommended that additional custody be awarded to Grandparents. On November 17, 2004, the orphans' court denied and dismissed Aunt and Uncle's petition for adoption, but maintained physical and legal custody with Aunt and Uncle. It awarded Grandparents partial custody on alternating weekends and specified holidays. This appeal ensued.

¶ 10 On appeal, Aunt and Uncle raise the following issues:

1. Did the Lower Court err in vacating the adoption decree of August 23, 2000[?]

2. Did the Lower Court abuse its discretion in denying and dismissing the Petition for Adoption filed by Appellants?

Appellants' brief at 4.

¶ 11 Our standard of review when considering an appeal from an orphans' court order is as follows:

This court must determine whether the record is free from legal error and the orphans' court's factual findings are supported by the evidence. Because the court sits as the fact-finder, it determines the credibility of the witnesses and on review, we will not reverse its credibility determinations absent an abuse of that discretion.

In re Adoption of A.M.B., 812 A.2d 659, 662 (Pa.Super.2002). Our scope of review when the orphans' court has granted a petition to vacate an adoption "is limited to determining whether the trial court's findings are supported by competent evidence or whether the court abused its discretion or committed an error of law." In re Adoption of S.A.J., 575 Pa. 624, 631, 838 A.2d 616, 620 (2003) (quoting In the Matter of the Adoption of Christopher P., 480 Pa. 79, 86, 389 A.2d 94, 98 (1978)).

¶ 12 Aunt and Uncle contend the court erred in vacating the adoption decree and in concluding that Grandparents were entitled to notice of the adoption hearing. They assert that the Adoption Act did not require them to provide notice to Grandparents. Their sole support is Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985), where the court held that a minor child's grandparent, seeking to vacate an adoption decree one and one-half years after its implementation, was not required to receive notice of a pending adoption.

¶ 13 Faust is readily distinguishable from the instant case on two bases. First, the Faust grandparent's sole claim to entitlement of notice related to the Custody and Grandparents Visitation Act. In contrast, Grandparents herein based their entitlement to seek custody on their in loco parentis status in addition to their statutory rights. Walkenstein v. Walkenstein, 443 Pa.Super. 683, 663 A.2d 178 (1995) (where party stands in loco parentis to child standing to pursue custody action against biological parent is granted). Second, the grandparent in Faust failed to institute an action for visitation of her grandson before his adoption despite the Act's provision entitling her to do so. In the instant case, Grandparents enjoyed court-ordered partial custody every other weekend at the time Aunt and Uncle filed their adoption petition.

¶ 14 More significantly, the Adoption Act, 23 Pa.C.S. § 2101 et seq., sets forth the requirements of notice for the time and place of the adoption hearing. While Aunt and Uncle focus on the fact that Grandparents are not delineated as parties requiring notice for the hearing, they conveniently ignore that the statute requires notice of the adoption hearing not only to every person whose consent is required, but also "to such other persons as the court shall direct." 23 Pa.C.S. § 2721.

¶ 15 In re Adoption of B.E.W.G., ...