J-A08013-19
2019 PA Super 344
IN THE INTEREST OF: A.M., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: P.M.-T., NON- :
BIOLOGICAL PARENT :
:
:
: No. 987 WDA 2018
Appeal from the Order Dated June 9, 2018
In the Court of Common Pleas of Allegheny County
Family Court at No(s): CP-02-DP-0000934-2017
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
OPINION BY PANELLA, P.J.: FILED NOVEMBER 19, 2019
Appellant, P.M.-T., contends the trial court erred in denying him1
standing at the dependency proceedings of the child that was born during his
same-sex marriage to J.M. (“Mother”). We agree, and therefore reverse.
It is undisputed that P.M.-T. and Mother were legally married in
Allegheny County on February 20, 2015. At that time, Mother had two children
from a previous relationship who were adjudicated dependent and placed with
their maternal grandmother on January 10, 2017. Mother gave birth to A.M.
(“Child”) on July 21, 2017. Both P.M.-T. and Mother stated that P.M.-T. was
named as the father on the birth certificate. After Child was born, the
Allegheny County Office of Children, Youth and Families (“OCYF”) obtained an
Emergency Protective Custody Order for Child and she was placed, along with
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1 P.M.-T. was born female but uses male pronouns and titles to refer to
himself. See Continuance Order, 8/22/17, at 1. We will, as the trial court did,
do the same.
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her half siblings, with her maternal grandmother. A guardian ad litem (“GAL”)
was appointed for Child and an adjudicatory hearing was scheduled for August
22, 2017.
Both P.M.-T. and Mother were at the adjudicatory hearing on August 22.
Mother raised the issue of P.M.-T.’s parental status, informing the court that
P.M.-T. was her same-sex spouse, was listed as the father on Child’s birth
certificate and should be regarded as Child’s legal parent. See Continuance
Order, 8/22/17, at 1. The court continued the adjudicatory hearing, but
directed the parties to address P.M.-T.’s parental status, and therefore his
standing, at the continued hearing scheduled for October 11, 2017.
At the continued adjudicatory hearing, P.M.-T. requested that he be
recognized as Child’s father and be granted standing. See N.T. Adjudicatory
Hearing, 10/11/17, at 8-9. The court heard initial arguments on P.M.-T.’s
standing; specifically, whether he was presumed to be Child’s parent pursuant
to the presumption of paternity.2 Ultimately, the court deferred its decision
on P.M.-T.’s standing and appointed counsel to assist P.M.-T. with presenting
argument on the matter. The court also adjudicated Child dependent as to
Mother, based on Mother’s stipulation that Child should not be in her care until
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2 P.M.-T. refers to the presumption as one of parentage, rather than paternity,
and the GAL refers to it as the marriage presumption. While we acknowledge
that the term presumption of paternity is not sufficiently inclusive to reflect
the reality of modern families, which include those with two same sex spouses,
we will refer to the presumption as one of paternity in order to be consistent
with the terminology thus far used by our Supreme Court.
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she made further progress on her reunification goals, which included domestic
violence services. See Dispositional Order, 11/14/17, at 2-3; N.T.
Adjudicatory Hearing, 10/11/18, at 16.
A dispositional hearing was held on November 14, 2017. P.M.-T. was
not present at the hearing, and Mother explained that P.M.-T. had been
missing for over a week and that she intended to separate from him because
the relationship was hindering her progress toward regaining custody of her
children. See N.T. Dispositional Hearing, 11/14/17, at 5-6, 52-53. Given P.M.-
T.’s absence, the court did not consider the standing issue, but proceeded to
the dispositional hearing and ordered that Child remain in her placement with
her grandmother. The court then scheduled a permanency review hearing for
February 21, 2018, which P.M.-T. attended, but the hearing was continued
until April 9, 2018.
At that hearing on April 9, which P.M.-T. also attended, the parties
presented legal argument on whether the presumption of paternity applied to
a non-biological spouse, such as P.M.-T., whose same-sex spouse gave birth
to a child during their marriage. Counsel for P.M.-T. made clear this was an
issue of first impression in Pennsylvania. See N.T. Permanency Review
Hearing, 4/9/18, at 7. Although the trial court did not rule on the standing
issue at the hearing, instead taking the matter under advisement, it did find
that Mother and P.M.-T. were married, intended to remain married, and
intended to reestablish a household together. See Permanency Review Order,
4/9/18, at 4.
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The trial court issued its order denying P.M.-T.’s request for standing on
June 9, 2018. According to the court, the presumption of paternity was not
applicable to this case because P.M.-T. and Mother’s marriage, irrespective of
whether it was a same-sex or opposite-sex marriage, was not intact. P.M.-T.
appealed to this Court.
P.M.-T. argues, as do Mother and OCYS, that the trial court erred by not
granting P.M.-T. standing because he is the legal parent of Child under the
presumption of paternity.3
At its core, the question before this Court is one of standing. Standing
is a question of law and therefore, the standard of review is de novo and
the scope of review is plenary. See C.G. v. J.H., 193 A.3d 891, 898 (Pa.
2018). Under the Juvenile Act, only a “party” has the right to participate,
introduce evidence, and present arguments in dependency proceedings. See
In re L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006). Parents of the child
whose dependency status is at issue are considered “parties” and therefore
have standing at dependency proceedings. See id. This is only logical given
that the court has the ability to remove a dependent child from the custody of
his parents, see id., and that the interest of parents in “the care, custody and
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3 Only the GAL takes the position that the trial court properly denied standing
to P.M.-T on the basis that he and Mother did not have an intact marriage.
Notably, the GAL concedes that “the marriage presumption applies to same-
sex couples. . . .” The GAL further allows that if the evidence showed that
P.M.-T and Mother had an intact marriage, then the presumption would have
been available to P.M.-T. Brief of GAL, at 5.
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control of their children is perhaps the oldest fundamental liberty interest
recognized by [the Unites States Supreme] Court.” Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).
The presumption of paternity, i.e., the presumption that a child
conceived or born during a marriage is a child of the marriage, has been
described by our Supreme Court as “one of the strongest presumptions known
to the law.” Vargo v. Schwartz, 940 A.2d 459, 463 (Pa. Super. 2007). The
doctrine presumes that if a woman gives birth during her marriage, her spouse
is the other parent to that child. The policy underlying the presumption of
paternity is the preservation of marriages, and the presumption will only be
applied where that policy is advanced by its application. See id. “When there
is no longer an intact family or a marriage to preserve, then the presumption
of paternity is not applicable.” Id.; see also K.E.M. v. P.C.S., 38 A.3d 798,
806-07 (Pa. 2012) (presumption of paternity only applicable to situations in
which underlying policies will be advanced, namely where there is an intact
marriage to protect). In cases where the marriage is intact, however, the
presumption is applicable and irrebuttable. See Strauser v. Stahr, 726 A.2d
1052, 1055-56 (Pa. 1999).
Here, P.M.-T. and Mother were legally married when Child was
conceived as well as when she was born. See Brief of GAL, at 3-4 (conceding
that Mother and P.M.-T. were married for over two years before Child’s birth).
According to both P.M.-T. and Mother, P.M.-T. is listed as the father on Child’s
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birth certificate, and P.M.-T. informed the trial court that he wanted to be
recognized as the father and wanted to participate in Child’s dependency
proceedings. See Dispositional Order, 11/14/17, at 2; N.T., 10/11/17, at 8.
P.M.-T. and Mother remained married and intended to remain married at the
time P.M.-T.’s party status was being challenged. There is no third party
challenge to the parentage of Child. See N.T., 10/11/17, at 7; N.T., 4/9/18,
at 6, 10. Given these circumstances, we conclude the trial court should have
applied the presumption of paternity to P.M.-T.
The trial court found, however, that the presumption was not applicable
because P.M.-T. and Mother’s marriage was not intact. In support of that
conclusion, the trial court cited to the fact that P.M.-T. and Mother’s marriage
had been plagued by domestic violence and that their marriage had
“fluctuated.” The trial court highlighted Mother’s testimony at the dispositional
hearing on November 14 that she did not know the whereabouts of P.M.-T.
and that she essentially viewed her relationship with him as over. See Trial
Court Opinion at 10.
It is readily apparent from the record that the marriage between P.M.-
T. and Mother is riddled with challenges and difficulties. Under our case law,
though, the existence of troubles in a marriage – even one as serious and
disturbing as domestic violence - does not mean that such a marriage is not
intact for purposes of determining the applicability of the presumption of
paternity. As the Supreme Court stated in Strauser:
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[T]he marriage of Mother and Husband, like many, has
encountered serious difficulties. It is in precisely this
situation . . . that the presumption of paternity serves its
purpose by allowing husband and wife, despite past
mistakes, to strengthen and protect their family.
Id., at 1056.
The GAL asserts that Strauser is not applicable to this case because the
spouses in Strauser never separated, whereas Mother testified at the
dispositional hearing on November 14th that she had not been able to locate
P.M.-T. for over a week and that she intended to separate from him. We
disagree.
While it is true that Mother was uncertain of P.M.-T.’s whereabouts at
one point and expressed an intent to separate from him, there is no evidence
she followed through on that intention as the two appeared together at the
subsequent hearings on February 21 and April 9, 2018. The record reveals
that at that time, P.M.T. and Mother remained married, intended to remain
married, and were working, however imperfectly, to address the issues in their
family that needed to be remedied. See Permanency Review Order, 4/9/18,
at 3-4 (finding that “it is clear that Mother and [P.M.-T.] currently intend to
remain married” and that Mother and P.M.-T. were at least sporadically
attending various treatment programs, including those for substance abuse
and domestic violence).4
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4 The trial court acknowledged in its opinion that Mother and P.M.-T. “resumed
their relationship” but noted that they lacked housing and had not successfully
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We are, of course, mindful that the question before us is the threshold
one of whether P.M.-T. has standing to participate as a party in the
dependency proceedings of Child. Undoubtedly, the issues in P.M.-T. and
Mother’s marriage cited by the trial court are relevant to the separate and
distinct matters related to Child’s adjudication and placement. See In re J.S.,
980 A.2d 117, 121 (Pa. Super. 2009) (standing is a threshold issue only and
does not address the merits of the separate and distinct underlying issues of
adjudication or the propriety of permanency goal in dependency hearings).
They cannot, however, be relied upon to support the trial court’s conclusion
that the presumption of paternity did not afford P.M.-T. standing at Child’s
dependency proceedings because his existing marriage to Mother was not
intact. As a result, we agree with P.M.-T. that the trial court erred by denying
him standing. See J.L. v. A.L. and K.L., 205 A.3d 347, 353 (Pa. Super. 2019)
(trial court’s order regarding paternity is reviewed for abuse of discretion or
error of law).5
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reestablished a household together. See Trial Court Opinion at 10-11. We find
that, under Strauser, a married couple’s housing instability is not a proper
basis for finding that the marriage itself is not intact for purposes of the
presumption of paternity. See 726 A.2d at 1056.
5 Mother essentially argues that the trial court erred by arriving at its
conclusion that her marriage to P.M.-T. was not intact without the benefit of
hearing testimony on that issue from the spouse who was found to lack
standing. In a similar vein, OCYF argues that the trial court erred by limiting
the standing proceeding to legal argument, and improperly used information
learned from the cases of Mother’s two older children to substantiate its
conclusion that the marriage between Mother and P.M.-T. was not intact.
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In light of our conclusion that the marriage of Mother and P.M.-T. was
intact for purposes of the presumption of paternity, we must address the
broader issue of whether that presumption applies to the situation at hand
because it involves a same-sex marriage. All parties contend that the
presumption is applicable to same-sex spouses, and we agree.
When a child is born while two people are married, and the question of
parentage arises while that marriage is intact, the presumption of paternity is
meant to apply to the person in the marriage who was not the one to give
birth to the child. That is the exact situation here.
Our case law plainly states that the policy underlying the presumption
of paternity is to preserve marriages. Same-sex marriages are legal in
Pennsylvania and must be “afforded the same rights and protections as
opposite-sex” marriages. In Re Estate of Carter, 159 A.3d 970, 977 (Pa.
Super. 2017). We therefore have no difficulty in holding that the presumption
of paternity is equally as applicable to same-sex marriages as it is to opposite-
sex marriages.6
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Given that we have already determined that the trial court erred by finding
that the marriage was not intact, we do not need to reach the merits of these
claims. We do note, however, that the record reflects that the court handled
the standing issue with sensitivity and showed a genuine intent to understand
the law of parentage in the context of a family construct that had not yet been
before the court.
6None of the parties assert that our Supreme Court’s decision in C.G. v, J.H.,
193 A.3d 891 (Pa. 2018) is in any way controlling, or even applicable, to the
question presented by this matter. However, the Court in C.G. considered the
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In doing so, we join other states that have held similarly. See, e.g., LC
v. MG and Child Support Agency, 143 Hawai’i 302, 314, 430 P.3d 400, 412
(2018) (wife was presumed to be a parent of child born during spouses’ same-
sex marriage pursuant to statutory marital presumption); McLaughlin v.
Jones, 243 Ariz. 29, 37, 401 P.3d 492, 500 (2017) (extending statutory
marital paternity presumption to same-sex spouses); Wendy G-M v. Erin G-
M, 45 Misc.3d 574, 596, 985 N.Y.S.2d 845, 861 (Sup.Ct. Monroe County
2014) (under New York common law, female spouse of biological mother was
presumed to be a parent to child born during that marriage).
In sum, then, we hold that the trial court erred in finding that P.M.-T.
and Mother’s marriage was not intact, and in turn, erred by not applying the
presumption of paternity to P.M.-T. so that he had standing as a legal parent
to participate in the dependency proceedings of Child.
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issue of whether an unmarried former partner had standing to seek custody
as a “parent” of a child born during her same-sex relationship with the
biological mother. In holding that she did not, the Court opined that the former
partner was not a “parent” because she had no biological connection to the
child, had not officially adopted the child and had not entered into the very
specific type of contract that Pennsylvania courts have recognized as affording
legal parentage by way of contract. Id., at 903-04. The Court noted that the
“presumption attendant to marriage” was also a way to establish parentage
in Pennsylvania, id., at 906, but that such a presumption was not applicable
in C.G. because the parties had never been married. The Court found that the
issue of whether their out-of-state commitment ceremony was considered a
marriage was beyond the scope of the legal issue presented and the facts of
that case. Id., at 899 n.5. In stark contrast to the situation in C.G., there is
no dispute here that P.M.-T. and Mother were legally married and that Child
was born during that marriage.
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P.M.-T. also claims that the trial court erred by allowing the GAL to
participate as a party in the proceedings regarding P.M.-T.’s standing as a
parent. This claim is without merit.
The Juvenile Act requires a GAL to be appointed in dependency
proceedings to represent the legal interests and the best interest of the child
at every stage of the proceedings. See 42 Pa.C.S.A. § 6311(b).7 In making
his argument here, P.M.-T. fails to point to any statute or decision in this
Commonwealth that makes any exceptions to this clear mandate, much less
one that specifically precludes the GAL from participating when the issue of
an alleged parent’s standing arises during a child’s dependency proceedings.
P.M.-T. simply fails to establish, and we do not discern, any error in the
trial court’s decision to allow the GAL to participate in the hearings related to
P.M.-T.’s standing at Child’s dependency proceedings, every stage of which
Child is entitled to representation. See 42 Pa. C.S. § 6311(b).
Order reversed.
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7 42 Pa.C.S.A. § 6311(b)(9), stating that a GAL does not have a conflict of
interest where a child’s best interests and legal interests diverge, was
suspended by our Supreme Court. See In re Adoption of L.B.M., 161 A.3d
172, 175 n.4 (Pa. 2017). Given Child’s young age, there is no need to address
whether the trial court should have appointed separate counsel to represent
Child’s legal interests. See In re T.S., 192 A.3d 1080, 1089-92 (Pa. 2018).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2019
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