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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF E.A.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.A.S. (PREVIOUSLY G.) :
AND B.E.S. :
:
:
:
: No. 386 WDA 2016
Appeal from the Order February 10, 2016
In the Court of Common Pleas of Crawford County
Orphans’ Court at No(s): O.C. No. 43-2015
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED NOVEMBER 04, 2016
B.A.S. (previously B.A.G.) (“Maternal Grandmother”) and her husband,
B.E.S. (“Maternal Step-Grandfather”) (collectively, “Appellants” or
“Petitioners”) appeal from the order of the trial court denying, without
prejudice, their petition for the involuntary termination of the parental rights
of M.F., (“Father”), the birth father of E.A.G. (“Child”), a female born in May
2010, under the Adoption Act, 23 Pa.C.S. § 2511(a)(1) and (2). As we
conclude that Appellants waived all of their issues on appeal, we affirm.
On September 3, 2015, Appellants filed a petition for adoption seeking
to adopt Child, alleging that they resided in Kentucky, that Child’s birth
mother, T.R.G., (“Mother”), resided in Crawford County, and that Father
resided at the State Correctional Institute (“SCI”) Pittsburgh, in Allegheny
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County. Appellants attached an executed Consent to Adoption, allegedly
completed by Mother as Exhibit B, to their petition for adoption. The Consent
to Adoption had a caption in the Crawford County Court of Common Pleas,
but was not filed.
Appellants alleged in the adoption petition that, since late February
2015, Child had remained in Pennsylvania,
due to opposition to relocation of the child with the Petitioners to
Georgetown, Kentucky, by [P]aternal [G]randfather[.]. . . .
Custody matters involving the biological parents, . . . [Paternal
Grandfather, and Paternal Grandmother], commenced originally
in 2010. At the time this action was filed, only [Maternal
Grandmother] and [Mother] were parties. The case, at Mercer
County Court of Common Pleas No. 2010-[ ] has become
complicated, and shows little promise of offering a stable long
lasting option for [Child’s] growth, development, and best
interests. Your petitioners are requesting relocation that placed
the child with your Petitioners, pending adoption. Otherwise, this
adoption will proceed.
Petition for Adoption, at ¶ 2.
On September 17, 2015, Appellants filed a petition for involuntary
termination of parental rights of Father to Child, asserting that Father was
then incarcerated in SCI-Huntingdon. The petition stated that mother had
executed the consent to adoption attached to their petition for adoption, but
Father had not signed or had not returned a consent to adoption form.
Appellant sought the termination of Father’s parental rights pursuant to §
2511(a)(1) and (2) of the Adoption Act.
Further, Appellants alleged in the termination petition that they
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are willing to assume custody of the child until such time as the
child is adopted. However, until adoption is granted, the child
may be required to remain in the alternating custody of her
paternal grandfather, and her paternal grandmother [C.K.],
pursuant to an interim custody order in a custody case in Mercer
County, Pennsylvania, as noted in the Petition for Adoption filed
September 3, 2015.
Petition for Involuntary Termination, at ¶ 9.
In an order entered on October 5, 2015, the trial court scheduled a
status conference to occur on October 30, 2015, noting that the Appellants’
address in Kentucky, set forth in the termination petition, called into
question the trial court’s jurisdiction to proceed. The trial court order stated
that the status conference would not be an evidentiary hearing, and that the
purpose of the conference was to ascertain the status of the persons
involved in the matter.
At the status conference on October 30, 2015, the trial court did not
rule on the petitions. See N.T., 10/30/16, at 6. In an order entered on
November 10, 2015, the trial court appointed Attorney Barbara Mountjoy to
represent Father.
In an order entered on December 8, 2015, the trial court dismissed,
without prejudice, both Appellants’ adoption and involuntary termination
petitions, stating:
[F]ollowing a status conference held on October 30, 2015,
to ascertain the status of the persons involved in the petitions of
[Petitioners] for adoption and for involuntary termination of the
parental rights of the birth father of [Child], the [trial court]
finds that the petitioners are attempting to utilize the Adoption
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Act to circumvent the Uniform Child Custody Jurisdiction
Enforcement Act, over which the Mercer County Court of
Common Pleas has exclusive continuing jurisdiction.1 See 23
Pa.C.S.A. §§ 5422, 5471. The petitioners intend to pursue
adoption if they are unsuccessful in having the child placed with
them pursuant to their relocation request. Petition for Adoption,
¶ 2 (“Otherwise, this adoption will proceed.”). Although, “unlike
custody law, adoption law does not provide particular safeguards
to prevent [child-snatching and forum shopping],” comity
operates to restrain our jurisdiction. Matter of Adoption of
Sturgeon, 300 Pa. Super. 92, 104-5, 445 A.2d 1314, 1320
(1982). The adoption, moreover, would not automatically
terminate any custodial rights held by the paternal
grandparents.2 23 Pa.C.S.A. § 5326. The Petition for Adoption
and Petition for Involuntary Termination of Parental Rights of
Birth Father are, accordingly, DISMISSED, without prejudice.
____________________________________________
1
The case, in which the paternal grandparents have intervened,
is identified by petitioners as No. 2010-[ ]. We do not have even
the docket sheet from which to review those proceedings.
2
Petitioner [B.A.S.] is allegedly the child’s maternal
grandmother.
Order, at 1-2 (footnotes in original).
On December 11, 2015, Appellants filed a Motion to Schedule
Involuntary Termination Hearing, requesting a hearing on their petition. The
trial court denied the motion as moot, in light of the December 7 order.
On December 21, 2015, Appellants filed a Petition/Motion for
Reconsideration of Dismissal. The trial court vacated the December 7 and
December 18 orders, and scheduled an evidentiary hearing on the
jurisdictional issue.
On January 19, 2016, Appellants filed a Petition/Motion to Appoint
Counsel for Minor Adoptee, seeking the appointment of counsel for Child.
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On January 21, 2016, the trial court appointed Attorney Teresa Bliley as
guardian ad litem of Child. On January 25, 2016, Father filed a Motion to
Allow Video Testimony, which the trial court granted on January 27, 2016.
On February 3, 2016, Appellants filed a Motion to Cancel Hearing. The trial
court did not grant the motion, and held the hearing as scheduled.
In a memorandum and order, the trial court stated as follows:
The [c]ourt heard argument and accepted evidence at the
hearing held on February 5, 2016 that was scheduled to address
whether this [c]ourt has jurisdiction to consider the involuntary
termination petition filed by . . . (Petitioners). A jurisdictional
prerequisite is the Petitioners’ right to bring this action. See In
re G.D., 61 A.3d 1031 (Pa. Super. 2013) (grandmother who did
not have legal custody or in loco parentis status could not
participate in dependency proceeding).
The Adoption Act provides as follows:
Who may file.-- A petition to terminate parental
rights with respect to a child under the age of 18
years may be filed by any of the following:
(1) Either parent when termination is sought
with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing
in loco parentis to the child and who has filed
a report of intention to adopt required by
section 2531 (relating to report of intention to
adopt).
(4) An attorney representing a child or a
guardian ad litem representing a child who
has been adjudicated dependent under 42
Pa.C.S. § 6341(c) (relating to adjudication).
23 Pa.C.S.A. § 2512(a).
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Custody of the minor child is currently the subject of
extensive litigation taking place in Mercer County in the case
docketed at No. 2010-[ ]. The custody hearing has not yet
been completed, leaving unanswered the question of who will
have custody of the minor child. Petitioners are not the persons
having custody at the present time, and do not stand in loco
parentis to the child. They thus do not fall within any category of
those authorized to file a petition to terminate the parental
rights of the child’s father.
Accordingly, we enter the following
ORDER
AND NOW, this 10th day of February, 2016, for the reasons set
forth above, the petition for involuntary termination of the
parental rights of birth father is DISMISSED, without prejudice
should Petitioners ultimately prevail in the custody proceedings
currently underway in Mercer County and be awarded custody of
the minor child.
Trial Court Memorandum and Order, 2/10/16, at 1-2.
On March 4, 2016, Appellants filed a Second Petition/Motion for
Consideration and Retraction of Second Dismissal. At paragraph 19,
Petitioners alleged that Maternal Grandmother had filed a petition for
relocation in the Mercer County custody case, seeking to relocate Child to
Crawford County to Appellants’ custody. At paragraphs 35 and 36,
Appellants requested the trial court to retract, and render null and void, its
February 10, 2010 dismissal order.
On March 8, 2016, the trial court entered an order that provided as
follows:
AND NOW, this 8th day of March, 2016, before the [trial
court] is a motion for reconsideration of our Order of February
10, 2016, dismissing without prejudice the petition for
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involuntary termination of the birth father’s parental rights, filed
in the above referenced action on September 17, 2015.
According to Paragraph 19 of the motion, Petitioners . . . seek to
remove the Mercer County proceedings to this [c]ourt once their
petition to adopt the minor child is granted.1 The aforesaid Order
apparently frustrates this objective because an adoption requires
the termination of the parental rights of the non-consenting
father. 23 Pa.C.S.A. §§ 2711(3), 2714.
Petitioners maintain that In re W.C.K., 748 A.2d 223 (Pa.
Super. 2006), “specifically authorize[s]” their petition. On the
contrary, that case held (on alternate grounds) that the
petitioners did not have standing to obtain the involuntary
termination of parental rights. As indicated in the challenged
Order, Petitioners likewise do not have standing to bring their
termination petition.2 See Pa.C.S.A. § 2512(a).
___________________________________________________
1
Indeed counsel for Petitioners argued at the hearing held on
February 5, 2016 that “by law, [the custody action] stays here
once the adoption is granted.”
2
Petitioners’ averment that they stand in loco parentis to the
minor does not overcome the fact that they have not had
custody or been her caregiver since moving to Kentucky in
February 2015. Cf. D.G. v. D.B., 91 A.3d 706, 711 (Pa. Super.
2014).
Our review of In re Adoption of W.C.K. discloses that the
opinion has been implicitly overruled insofar as it intermixed
jurisdiction with standing, thereby permitting the Superior Court
to sua sponte raise the issue of standing for the first time on
appeal.3 See In re Adoption of Z.S.H.G., 34 A.3d 1283, 1288
(Pa. Super. 2011). Standing was raised in this [c]ourt by the
paternal grandfather in his “Answer/Pre-Hearing Memorandum”
and, perhaps more pertinently, at the hearing by the father’s
court-appointed counsel.
Accordingly, the “Second Petition/Motion for
Reconsideration and Retraction of Second Dismissal” is DENIED.
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3
The inclusion in our Memorandum accompanying the
challenged Order to “[a] jurisdictional prerequisite” should be,
therefore, replaced with a reference to standing.
4
The motion errs in stating, at Paragraphs 26 and 30, that the
Order also dismissed the adoption action.
5
Paragraph 33 of the motion also “reiterates” Petitioners’ desire
that the [c]ourt affirm of record that it will “fairly and impartially
judge this case.” Rules 1.1 and 2.2 of the Code of Judicial
Conduct renders such an avowal unnecessary, and inappropriate.
Order, 3/8/16, at 1-2 (footnotes in original).
On March 10, 2016, Appellants timely filed a notice of appeal from the
order entered on February 10, 2016. Appellants failed to accompany their
notice of appeal with a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b), and subsequently failed to file a
concise statement. Neither the trial court nor this Court directed Appellants
to file a concise statement, however. Thus, we will not penalize Appellants
for their failure to file a concise statement contemporaneously with their
notice of appeal. See In re K.T.E.L., 983 A.2d 745 (Pa. Super. 2009)
(finding that the appellant’s failure to simultaneously file a concise statement
did not result in waiver of all issues for appeal where the appellant later filed
the concise statement, and there was no allegation of prejudice from the late
filing).
However, Appellants’ brief fails to comply with Pa.R.A.P. 2111 for a
number of reasons, including that the brief does not include a statement of
the questions involved. See Pa.R.A.P. 2111(a)(4). Compliance with Rule
2111 has been called the “sine qua non for appellate review.” G. Ronald
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Darlington, et al., Pennsylvania Appellate Practice § 2111:1, Volume 20A
(2015-2016 ed.) (citation omitted).
In the Argument section of their brief, Appellants raise the following
issues:
I. Did the Trial Judge err in failing to designate the February 10,
2016 Order, as to whether it was final or interlocutory?
II. Did the Trial Judge err in failing to include the child’s January
25, 2016 testimony when that would be clearly be in her best
interests and her constitutional rights to life, liberty and the
pursuit of happiness?
III. Did the Trial Court Judge err in permitting parties other than
the parties to the adoption, to be present at proceedings
involving the adoption, and giving them rights to be heard in
opposition to the standing of the Petitioners to proceed with the
adoption?
IV. Did the Trial Court err in determining that the Petitioners do
not have in loco parentis standing, pursuant to which they would
be permitted to pursue the adoption?
V. Did the Trial Court err in restricting his dismissal to be
“without prejudice should the Petitioners” prevail in the Mercer
County custody case and be awarded custody there?
Appellants’ Brief, at 3, 4, 7, 10, 14.
Appellants have waived all of their issues on appeal for failing to file
both a concise statement and a statement of questions involved that would
preserve their issues for review. See Krebs v. United Refining Company
of Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (holding that an
appellant waives issues that are not raised in both his concise statement of
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errors complained of on appeal and the Statement of Questions Involved in
his brief on appeal); Pa.R.A.P. 2116 (stating that no question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby). See also In re K.T.E.L., 983 A.2d 745, 750 (Pa.
Super. 2009) (finding the mother’s challenges to statutory grounds for
terminating her parental rights were waived on appeal because they were
not raised in the statement of questions involved).
We, therefore, are constrained to affirm the February 10, 2016 order
dismissing the Appellants’ involuntary termination petition without
prejudice.1
Order affirmed.
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1
In their first issue, Appellants contend that the trial court failed to
designate the February 10, 2016 order as a final order. See Appellants’
Brief, at 3. In its Rule 1925(a) opinion, the trial court states that its
February 10, 2016 order was final and appealable, citing In re H.S.W.C.-B.,
575 Pa. 473, 836 A.2d 908 (2003). See Pa.R.A.P. 1925(a) Opinion at 1 n.1.
Appellants’ appeal is timely with regard to the February 10, 2016 final order.
See Pa.R.A.P. 903(a), 1701(b). Cf. Valentine v. Wroten, 580 A.2d 757
(Pa. Super. 1990) (stating that appeal from denial of reconsideration is
improper). Thus, we would find Appellants’ first issue lacks merit in any
event.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2016
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In Re: Adoption of: E.A.G., Appeal of: B.A.S.
Combined Opinion