Adoption of: A.M.W., Appeal of: M.J.G.

J-A23034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.J.G. :
:
:
:
: No. 519 MDA 2021

Appeal from the Decree Entered March 31, 2021
In the Court of Common Pleas of Bradford County Orphans’ Court at
No(s): 18 ADOPT 2020

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: FEBRUARY 14, 2022

Appellant, M.J.G. (“Former Stepfather”), files this appeal from the

decree dated March 29, 2021,1 in the Bradford County Court of Common Pleas,

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* Former Justice specially assigned to the Superior Court.

1 While time-stamped as March 29, 2021, the docket reflects a recorded date
of March 31, 2021. There is no notation on the docket that notice was given
such that the decree was entered for purposes of Pa.O.C.R. 4.6(b) (stating,
“The clerk shall note in the docket the date when notice was given to the party
or to his or her counsel under subparagraph (a) of this Rule.”). See Note
Pa.O.R. 4.6 (noting that the Rule is “derived from Pa.R.C.P. No. 236.”);
Frazier v. City of Philadelphia, 557 Pa. 618, 621, 735 A.2d 113, 115 (1999)
(holding that “an order is not appealable until it is entered on the docket with
the required notation that appropriate notice has been given”); Pa.R.A.P.
108(a) (entry of an order is designated as “the day on which the clerk makes
the notation in the docket that notice of entry of the decree has been given
as required by Pa.R.Civ.P. 236(b).”). Thus, the decree was not entered, and
the appeal period was not triggered. Although we consider the matter on the
merits, we caution the Court of Common Pleas of Bradford County as to
compliance with the rules regarding the entry of orders.
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dismissing his petition to adopt A.M.W. (“Child”), born in December of 2009.

Former Stepfather also appeals the decree dated March 31, 2021,2 granting

the petition to adopt filed by E.B. (“Current Stepfather”), who is the husband

of A.G. (“Mother”), and which petition Mother joined.3, 4 After a careful review,

we affirm.

The relevant facts and procedural history are as follows: The parties

filed competing petitions for the adoption of Child. Specifically, Former

Stepfather filed a petition for adoption on February 11, 2021, while Current

Stepfather, joined by Mother, filed a separate petition for adoption on

February 24, 2021. As to his adoption petition, Former Stepfather failed to

attach the consent of Mother and averred that it was being “unreasonably

with[eld].” Petition for Adoption, 2/11/20, at ¶11.

Mother and Former Stepfather were in a relationship at the time of

Child’s birth, and they subsequently married. They divorced in January of

2017. Mother and Current Stepfather married in May of 2019. Child’s

biological father has not been involved with the Child. Former Stepfather

served as a father-figure to Child. During the marriage, he was held out as

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2 While the docket reflects a recorded date of March 31, 2021, there is no
notation on the docket that notice was given and that the decree was entered
for purposes of Pa.O.C.R. 4.6(b). See n.1, supra.

3 Pursuant to this decree, Child is to be known as A.M.W.-B.

4 We note that both decrees were recorded at a single trial court docket
number.

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Child’s father, and he and Mother discussed his adoption of Child. He further

alleged that he provided medical and dental insurance covering Child during

and after the marriage. See Former Stepfather’s Brief in Support of Adoption

Petition, 3/11/21, at Exhibits B, E, G; Petition for Adoption, 2/24/20, at Exhibit

A.

Former Stepfather recounted:

I was in a monogamous relationship with [Mother] at the time of
[Child]’s birth until our marriage. I was stepfather until [Mother]
and I divorced on January 6, 2017. During that time, I helped
teach [Child] to walk and to talk and I was her only father figure
until [Current Stepfather] came into the picture. Her biological
father was not involved whatsoever. [Child] has always called me
“dad”, “daddy”, or words to that effect. I financially supported
[Child] both before and after my divorce from [Mother] and I have
provided health and dental insurance for most of her life, including
at present. [Mother] publically [sic] held me out as [Child]’s
father. Prior to[,] and even after our divorce, we discussed
adoption and [Mother] gave me her consent to adopt[.]

Former Stepfather’s Brief in Support of Adoption Petition, 3/11/21, at Exhibit

G.

Moreover, a Post-Nuptial Agreement between Former Stepfather and

Mother, dated September 20, 2016, included custody and support provisions.

Id. at Exhibit C, ¶¶4, 5. As to custody, the agreement provided, in part, “The

parties shall share legal custody of [the children]. . . .The parties agree that

[Former Stepfather] shall have shared physical custody of the children when

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[Former Stepfather] returns from Italy.”5, 6 Id. at Exhibit C, ¶4. Former

Stepfather claimed he exercised visitation pursuant to the agreement, as well

as participated in regular video calls with Child. Id. at Exhibit G. Further, in

June of 2020, he filed a custody petition seeking partial physical custody of

Child.7 Id.

On June 2, 2020, Mother and Current Stepfather filed a petition to

involuntarily terminate Child’s biological father’s parental rights.8 Thereafter,

Former Stepfather filed a petition to intervene on July 22, 2020.9 The trial

court granted the petition to involuntarily terminate Child’s biological father’s

parental rights on December 14, 2020. Order, 12/14/20.

As indicated supra, Former Stepfather and Current Stepfather, joined

by Mother, then filed separate adoption petitions in February of 2021. While

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5 Former Stepfather and Mother additionally share a biological child who was
also the subject of the post-nuptial agreement.

6Former Stepfather is in the United States Air Force, and he resided in Italy
until July of 2018.

7 The status of this petition is unknown.

8This petition noted Current Stepfather’s intention to adopt Child and attached
a proposed adoption petition to be filed once parental rights were terminated.
Petition for Involuntary Termination of Parental Rights, 6/2/20, at ¶¶14, 15.

9 In his petition to intervene, Former Stepfather argued he possessed an
interest as he stood in loco parentis and had custodial rights pursuant to a
post-nuptial agreement with respect to Child. He also asserted paternity by
estoppel. Petition to Intervene, 7/22/20, at ¶1. By order dated October 2,
2020, a decision on this petition was deferred. Order, 10/2/20.

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the parties were awaiting a hearing on the competing adoption petitions, on

March 3, 2021, pursuant to an agreement, the trial court entered an order

indicating that the issue of whether Former Stepfather had standing, or the

ability to bring suit for adoption, would be decided on the briefs and directed

the filing of same.

Subsequent to objections filed on March 10, 2021, arguing that Former

Stepfather does not have standing to seek adoption due to Mother’s lack of

consent, and counseled briefs submitted by the parties, by decree dated March

29, 2021, the trial court dismissed Former Stepfather’s petition for adoption.

This decree was accompanied by a Memorandum Opinion, wherein the trial

court reasoned that Former Stepfather lacked the ability to proceed with

adoption.

Specifically, the trial court held:

In this case, [Mother]’s rights are intact. She is remarried
and her husband, the stepfather of [Child,] wishes to adopt[,] and
[Mother] has consented to such. Given these facts, the court
cannot . . . find that consent of the surviving natural mother is not
required and bestow an ex-husband/stepfather the right to
proceed in an adoption, even though he may have [in loco
parentis] status.

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Trial Court Memorandum Opinion, 3/29/21, at 3-4. Two days later, on March

31, 2021, following a hearing,10 the trial court granted the adoption petition

filed by Current Stepfather.

Thereafter, on April 19, 2021,11 Former Stepfather, through counsel,12

filed a timely notice of appeal, as well as a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b). On April

22, 2021, the trial court entered an order directing Former Stepfather file a

concise statement. Former Stepfather complied and filed an amended concise

statement on May 12, 2021.13 On May 17, 2021, the trial court issued a

Statement in Lieu of Opinion Pursuant to Pa.R.A.P. 1925.

On appeal, Former Stepfather raises the following issues for our review:

1. Whether the trial court erred and abused its discretion in
dismissing [Former Stepfather]’s petition for adoption on the basis
that [Former Stepfather] lacked standing[?]
2. Whether the trial court erred in granting the adoption petition
of [Current Stepfather], without considering that [M]other and

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10 Notes of Testimony from this hearing have not been included with the
certified record, and it is unknown if they have been transcribed. Pursuant to
order of April 22, 2021, the trial court denied a request by counsel for Former
Stepfather for such notes. Order, 4/22/21.

11While filed on April 19, 2021, the docket, as well as the time-stamp on the
document, reflects a payment issue that was rectified on April 28, 2021.
Regardless, Current Stepfather’s appeal is timely.

12 Former Stepfather is represented by new counsel on appeal.

13The issues raised in Former Stepfather’s amended concise statement are
substantially similar to those raised in his initial concise statement.

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[Current Stepfather] were estopped from denying the legal
parentage of [Former Stepfather]?
3. Whether the trial court erred in failing to rule on [Former
Stepfather]’s Petition to Intervene?
4. Whether the trial court abused its discretion in failing to appoint
legal counsel and/or guardian [ad litem] for the eleven-year-old
child upon receiving two competing adoption petitions?
5. Whether the trial court erred in proceeding with the adoption
hearing of [Mother and Current Stepfather] without first giving
thirty (30) days for [Former Stepfather] to appeal its decision to
dismiss his adoption petition[?]
6. Whether the trial court erred and abused its discretion in
concluding that the child’s best interest would be served by
granting the adoption petition of [Current Stepfather] without all
testimony necessary to inform it as to the desirability of the
proposed adoption[?]
7. Whether this Honorable Court should consider quashing
[Former Stepfather]’s appeal from two orders of the trial court?[14]

Former Stepfather’s Brief at 4-5 (suggested answers omitted) (footnote

added).15

“[T]he interpretation and application of a statute is a question of law

that compels plenary review to determine whether the court committed an

error of law.” Wilson v. Transport Ins. Co., 889 A.2d 563, 570 (Pa.Super.

2005). “As with all questions of law, the appellate standard of review is de

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14 Although not included in Former Stepfather’s Rule 1925 Statements, this
issue was raised by this Court in the Rule to Show Cause. Given our
disposition that Father’s appeals are proper, we do not consider this issue.
See n.4, supra.

15 While we observe that Former Stepfather states his issues differently than
in his Rule 1925(b) Statements, we nevertheless find that he preserved the
challenges to the trial court’s decrees raised in his Statement of Questions
Involved.

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novo and the appellate scope of review is plenary.” In re Wilson, 879 A.2d

199, 214 (Pa.Super. 2005) (en banc).

Moreover, this Court reviews an adoption determination for an abuse of

discretion. In re K.D., 144 A.3d 145, 151 (Pa.Super. 2016). We will not

conclude there is an abuse of discretion “merely because a reviewing court

would have reached a different conclusion.” Id. (citation omitted). Rather,

“[a]ppellate courts will find a trial court abuses its discretion if, in reaching a

conclusion, it overrides or misapplies the law, or the record shows that the

trial court’s judgment was either manifestly unreasonable or the product of

partiality, prejudice, bias or ill will.” Id. (citation omitted).

We have stated, “[i]n both custody and adoption matters, our

paramount concern is the best interests of the child. This ‘best interests’

determination is made on a case-by-case basis, and requires the weighing of

all factors which bear upon a child’s physical, intellectual, moral, and spiritual

well-being.” In re Adoption of A.S.H., 674 A.2d 698, 700 (Pa.Super. 1996)

(citations omitted). See 23 Pa.C.S.A. § 2902(a).

On appeal, Former Stepfather challenges both the order dismissing his

petition, as well as the decree granting Current Stepfather’s petition, which

was joined by Mother. Former Stepfather first disputes the trial court’s

determination as to his lack of standing. Emphasizing the distinction between

standing and a determination on the merits, Former Stepfather asserts that

the trial court erred in not permitting his petition to be heard on the merits

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since he stood in loco parentis, or in the place of a parent, to Child. See

Former Stepfather’s Brief at 14-15, 23-24. He indicates he has been in Child’s

life since her birth in a parental role and, even after his divorce from Mother,

he shared legal and physical custody, paid child support, and maintained

medical and dental insurance covering Child. Id. at 14-15, 17-18. Former

Stepfather further maintains that he established good cause to dispense with

the necessity for Mother’s consent and proceed to a hearing on the merits as

to both petitions for adoption, suggesting that Mother and Current Stepfather

engaged in “gamesmanship” in filing for adoption as a result of his custody

filing. Id. at 17-18, 23-24. Former Stepfather likewise alleges that Mother

and Current Stepfather essentially sought to thwart his parental rights without

grounds. Id. at 17-18, 24.

Former Stepfather contends there are situations where consent is not

required, and it is the trial court’s responsibility to establish the function of a

conferred or withheld consent in an adoption proceeding. He further maintains

the trial court determines best interests as it relates to adoption, and nothing

precludes a court from entertaining multiple adoption petitions while

determining the child’s best interests.16 See Former Stepfather’s Brief at 19-

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16Former Stepfather attempts to utilize In the Matter of the Adoption of
A.M.T. and C.C.T., 803 A.2d 203 (Pa.Super. 2002), In re Adoption of
R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002), and In re Adoption of J.E.F.,
587 Pa. 650, 902 A.2d 402 (2006), to argue that Mother’s consent is not
(Footnote Continued Next Page)

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22. Moreover, Former Stepfather submits that, in fact, his consent was

required with respect to Current Stepfather’s adoption of Child as he is a

parent under the Adoption Act and/or given his custodial rights to Child as

Mother’s consent would not be required. Id. at 24-27.

With regard to adoption, our Supreme Court has stated:

We begin by recognizing that adoption is purely a statutory
right, unknown at common law. In re Adoption of E.M.A., 487
Pa. 152, 409 A.2d 10, 11 (1979). To effect an adoption, the
legislative provisions of the Adoption Act must be strictly complied
with. [Id.] Thus, our analysis is focused entirely on the relevant
statutory provisions.
The Adoption Act provides that “[a]ny individual may be
adopted, regardless of his age or residence.” 23 Pa.C.S.[A.] §
2311. Similarly, “[a]ny individual may become an adopting
parent.” [Id.] at § 2312. Section 2701 sets forth the requisite
contents of a petition for adoption filed by a prospective adoptive
parent[.]

In re Adoption of R.B.F., 569 Pa. 269, 276, 803 A.2d 1195, 1199 (2002).

23 Pa.C.S.A. § 2701 states:

A petition for adoption shall set forth:
(1) The full name, residence, marital status, age,
occupation, religious affiliation and racial background
of the adopting parent or parents and their
relationship, if any, to the adoptee.
(2) That the reports under [S]ections 2530
(relating to home study and preplacement report),
2531 (relating to report of intention to adopt) and
2533 (relating to report of intermediary) have been
filed, if required.
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required. Former Stepfather’s Brief at 19-22. We, however, find these cases
factually distinguishable.

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(3) The name and address of the intermediary,
if any.
(4) The full name of the adoptee and the fact
and length of time of the residence of the adoptee with
the adopting parent or parents.
(5) If there is no intermediary or if no report of
the intermediary has been filed or if the adoptee is
over the age of 18 years, all vital statistics and other
information enumerated and required to be stated of
record by [S]ection 2533, so far as applicable.
(6) If a change in name of the adoptee is
desired, the new name.
(7) That all consents required by [S]ection
2711 (relating to consents necessary to
adoption) are attached as exhibits or the basis
upon which such consents are not required.
(8) That it is the desire of the petitioner or the
petitioners that the relationship of parent and child be
established between the petitioner or petitioners and
the adoptee.
(9) If no birth certificate or certification of
registration of birth can be obtained, a statement of
the reason therefor and an allegation of the efforts
made to obtain the certificate with a request that the
court establish a date and place of birth at the
adoption hearing on the basis of the evidence
presented.

23 Pa.C.S.A. § 2701 (emphasis added).

As to consent to an adoption, 23 Pa.C.S.A. § 2711 provides, in part:

(a) General rule.--Except as otherwise provided in this part,
consent to an adoption shall be required of the following:
(1) The adoptee, if over 12 years of age.
(2) The spouse of the adopting parent, unless they
join in the adoption petition.
(3) The parents or surviving parent of an
adoptee who has not reached the age of 18
years.

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(4) The guardian of an incapacitated person.
(5) The guardian of the person of an adoptee under
the age of 18 years, if any there be, or of the person
or persons having the custody of the adoptee, if any
such person can be found, whenever the adoptee has
no parent whose consent is required.
...
(d) Contents of consent.--
(1) The consent of a parent of an adoptee under 18 years of age
shall set forth the name, age and marital status of the parent, the
relationship of the consenter to the child, the name of the other
parent or parents of the child and the following:
I hereby voluntarily and unconditionally consent to the
adoption of the above named child.
I understand that by signing this consent I indicate
my intent to permanently give up all rights to this
child.
I understand such child will be placed for adoption.

23 Pa.C.S.A. § 2711 (emphasis added).

Notwithstanding, pursuant to 23 Pa.C.S.A. § 2713, consents are not

required as follows:

The court, in its discretion, may dispense with consents other than
that of the adoptee to a petition for adoption when:
(1) the adoptee is over 18 years of age; or
(2) the adoptee is under 18 years of age and has no
parent living whose consent is required.

23 Pa.C.S.A. § 2713.

Further, 23 Pa.C.S.A. § 2714 provides:

Consent of a parent to adoption shall not be required if a decree
of termination with regard to such parent has been entered. When
parental rights have not previously been terminated, the court
may find that consent of a parent of the adoptee is not required

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if, after notice and hearing as prescribed in [S]ection 2513
(relating to hearing), the court finds that grounds exist for
involuntary termination under [S]ection 2511 (relating to grounds
for involuntary termination).

23 Pa.C.S.A. § 2714.

As to retention of parental rights, 23 Pa.C.S.A. § 2901 states:

Unless the court for cause shown determines otherwise, no decree
of adoption shall be entered unless the natural parent or parents’
rights have been terminated, the investigation required by Section
2535 (relating to investigation) has been completed, the report of
the intermediary has been filed pursuant to Section 2533 (relating
to report of intermediary) and all other legal requirements have
been met. If all legal requirements have been met, the court may
enter a decree of adoption at any time.

23 Pa.C.S.A. § 2901.

However, by way of exception, 23 Pa.C.S.A. § 2903 provides:

Whenever a parent consents to the adoption of his child by his
spouse, the parent-child relationship between him and his child
shall remain whether or not he is one of the petitioners in the
adoption proceeding.

23 Pa.C.S.A. § 2903. See In re Adoption of R.B.F., 569 Pa. at 276-77, 803

A.2d at 1199-1200 (remanding for a determination of cause pursuant to

Section 2901 and stating, “Thus, absent a qualifying provision appearing

elsewhere in the Adoption Act, it is clear from a plain reading of these sections

that a legal parent must relinquish his parental rights in order to consent to

the adoption of his child by a non-spouse.”).

Significantly, in In re Adoption of J.D.S., 763 A.2d 867, 872

(Pa.Super. 2000), in holding the termination of a biological father’s parental

rights was improper, this Court considered the interplay of these statutes and

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found that the proposed adoption by a stepfather who was separated from the

child’s mother was not valid. Examining Section 2903, this Court specifically

indicated the mother could not consent to the adoption in the absence of an

intact marriage. We held that “[a]bsent a verifiable finding that there is an

intact marital relationship between mother and stepfather, who previously had

assumed an in loco parentis relationship to the child, mother was without a

legal basis for consenting to adoption in conjunction with the stepfather’s

petition for adoption of the child.” Id. at 871.

While recognizing the discretion afforded by Section 2901, this Court

acknowledged that it “cannot be exercised unless and until the statutory

requirements leading up to the adoption have been met and, until that time,

the best interest and general welfare of the child cannot be considered.” Id.

(citation omitted). This Court addressed the important policy of promoting an

intact marriage and family unit, noting “the purposes of protecting the

integrity and stability of the new family unit. Because the primary function of

government and law is to preserve and perpetuate society, the traditional

family structure is given every reasonable presumption in its favor. This

comprehends an intact and subsisting family including a stepparent.” Id.

In determining the proposed adoption by the stepfather was invalid in

In re Adoption of J.D.S., supra, this Court held that, regardless of the

stepfather’s willingness to proceed with adoption, “[the stepfather]’s intent,

however, does not overcome the requirement that the marriage be intact and

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functioning.” Id. at 872. As such, this Court vacated the order terminating

the biological father’s parental rights and dismissed the stepfather’s petition

for adoption. Id.

In the case sub judice, notably, Mother’s parental rights are intact and

remain. Further, Mother, Child, and Former Stepfather are no longer part of

an intact family unit. Mother and Former Stepfather have been divorced since

January of 2017, three and half years at the time Former Stepfather filed his

petition for adoption. As such, Mother’s consent is required with respect to

adoption. See 23 Pa.C.S.A. § 2711(a)(3); 23 Pa.C.S.A. § 2901. However,

given that she and Former Stepfather are divorced, Mother cannot legally

consent to his adoption of Child. See In re Adoption of J.D.S., 763 A.2d at

871.

Moreover, and more importantly, Mother, Child, and Current Stepfather

are part of an intact family unit. Therefore, in keeping with the statutory

intent, which “presuppose[s] a stable marriage and, by inference, an intact

family,” Mother joined in the adoption petition of her current husband, Current

Stepfather. Id. (emphasis in original). Accordingly, Former Stepfather’s

claim fails.

In his second issue, Former Stepfather maintains the trial court erred

because Mother and Current Stepfather were estopped from denying his

parentage of Child given actions recognizing such parentage. See Former

Stepfather’s Brief at 27-30. Former Stepfather explains:

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Here, there is a lifelong intact relationship to protect
between [Former Stepfather] and his eleven-year-old child. The
pleadings filed in the instant matter are replete with examples of
the prior conduct of the parties confirming [Former Stepfather]’s
parentage to the child. Examples include [M]other holding
[Former Stepfather] out as the father of the child, accepting child
support from [Former Stepfather], accepting health and dental
insurance from [Former Stepfather] for the child, and sharing
legal and physical custody with [Former Stepfather], even
following their divorce. [Former Stepfather] for all relevant times
continued to hold himself out as parent for the entire life of the
subject child and his behavior as a responsible parent has been
evident for the past eleven years. The philosophy set forth by the
Superior Court in [Gebler v. Gatti, 895 A.2d 1 (Pa.Super. 2006)]
is instructive and applicable to the case at bar and [M]other should
be estopped from denying the parentage that already exists
between [Former Stepfather] and the child, a relationship which
[M]other fostered.

Id. at 30.

We disagree. While Former Stepfather relies on the cases of Gulla v.

Fitzpatrick, 596 A.2d 851(1991), and Gebler v. Gatti, 895 A.2d 1 (Pa.Super.

2006), these cases are distinguishable from the case sub judice. In those

cases, this Court utilized paternity by estoppel in order to protect the children

so that the children were secure in their identity of their parents.

This Court in Gebler highlighted:

[C]hildren should be secure in knowing who their parents
are; if a person has acted as the parent and bonded with the child,
the child should not be required to suffer the potentially damaging
trauma that may come from being told that the father he has
known all his life is not in fact his father.

Gebler, 895 A.2d at 3. Critical to this policy is the protection of an intact

family unit. Id.

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In the case sub judice, this policy is not applicable as it relates to Former

Stepfather as he, Mother, and Child, as well as the biological child he shares

with Mother, are no longer an intact family unit. Rather, Mother, Current

Stepfather, and Child are part of an intact family unit. We, likewise, recognize

that paternity by estoppel, which largely arises in paternity disputes related

to child support actions, cannot overcome the plain language of the Adoption

Act regarding the consents necessary for adoption. Thus, this claim is without

merit.

In his third issue, Former Stepfather claims the trial court committed

error by failing to rule on his petition to intervene. See Former Stepfather’s

Brief at 31-35. Former Stepfather asserts this omission resulted in the lack

of a “full and fair opportunity to be heard, participate and present evidence

regarding the dispositive factor in all adoption proceedings, namely what is in

the child’s best interest” and “denied the child her right to have her best

interests determined upon a consideration of all relevant facts.” Id. at 34-35

(footnote omitted).

Pa.R.Civ.P. 2327 states:

At any time during the pendency of an action, a person not a party
thereto shall be permitted to intervene therein, subject to these
rules if
(1) the entry of a judgment in such action or the satisfaction of
such judgment will impose any liability upon such person to
indemnify in whole or in part the party against whom judgment
may be entered; or

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(2) such person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the
court or of an officer thereof; or
(3) such person could have joined as an original party in the action
or could have been joined therein; or
(4) the determination of such action may affect any legally
enforceable interest of such person whether or not such person
may be bound by a judgment in the action.

Pa.R.Civ.P. 2327.

Pa.R.Civ.P. 2328 provides:

(a) Application for leave to intervene shall be made by a petition
in the form of and verified in the manner of a plaintiff’s initial
pleading in a civil action, setting forth the ground on which
intervention is sought and a statement of the relief or the defense
which the petitioner desires to demand or assert. The petitioner
shall attach to the petition a copy of any pleading which the
petitioner will file in the action if permitted to intervene or shall
state in the petition that the petitioner adopts by reference in
whole or in part certain named pleadings or parts of pleadings
already filed in the action.
(b) A copy of the petition shall be served upon each party to the
action.

Pa.R.Civ.P. 2328.

Further, as to the court action regarding a petition to intervene,

Pa.R.Civ.P. 2329 states:

Upon the filing of the petition and after hearing, of which due
notice shall be given to all parties, the court, if the allegations of
the petition have been established and are found to be sufficient,
shall enter an order allowing intervention; but an application for
intervention may be refused, if
(1) the claim or defense of the petitioner is not in subordination
to and in recognition of the propriety of the action; or
(2) the interest of the petitioner is already adequately
represented; or

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(3) the petitioner has unduly delayed in making application for
intervention or the intervention will unduly delay, embarrass or
prejudice the trial or the adjudication of the rights of the parties.

Pa.R.Civ.P. 2329.

Arguing that he possessed an interest related to Child, Former

Stepfather filed a petition to intervene on the adoption docket on July 22,

2020, subsequent to the filing of the petition to involuntarily terminate Child’s

biological father’s parental rights. By order of October 2, 2020, Former

Stepfather’s petition to intervene was deferred. Thereafter, Former Stepfather

filed a petition for adoption, which the trial court dismissed by decree dated

March 29, 2021.

Given our disposition concerning Former Stepfather’s petition for

adoption, we conclude his issue related to the petition to intervene is moot.

See In re D.A., 801 A.2d 614, 616 (Pa.Super. 2002) (As a general rule, “an

actual case or controversy must exist at all stages of the judicial process, or

a case will be dismissed as moot. . . . An issue before a court is moot if in

ruling upon the issue the court cannot enter an order that has any legal force

or effect.”).

Nevertheless, even if not moot, while the petition to intervene was not

ruled upon after deferral, Former Stepfather, through counsel, participated

and/or was represented in all aspects related to the adoption docket until his

petition for adoption was dismissed. Therefore, Former Stepfather suffered

no prejudice. Hence, this claim is without merit.

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In his fourth issue, Former Stepfather asserts the trial court erred in

failing to appoint counsel to represent Child with respect to the competing

petitions for adoption at issue. See Former Stepfather’s Brief at 35-39. While

agreeing that counsel was appointed on October 2, 2020, for purposes of the

petition for involuntary termination, Former Stepfather maintains that counsel

was not notified of and/or a participant in the proceedings thereafter. Id. at

37-38. He claims this was error.

Specifically, Former Stepfather avers:

It is manifestly unreasonable to appoint counsel for a child in an
uncontested termination of parental rights hearing but fail to
appoint counsel or require their participation in a contested
adoption matter with competing petitions that will impact the
child’s parent-child relationships. This decision by the trial court
left an eleven-year-old child without counsel to (1) explain what
was going on and the decision the trial court had to make, (2)
explain the impact the trial court’s decision had on the parental
rights of [Former Stepfather] and [Current Stepfather], (3)
ascertain and report her wishes and preferences to the trial court,
(4) object to either or both petitions for adoption, and (5) present
evidence on her behalf, including any bonding evidence and the
impact on the sibling relationship she has with the biological child
of [Former Stepfather] and [M]other. All these manifestly
unreasonable decisions by the trial court denied the child due
process in a matter she had a substantial interest in. Accordingly,
the child’s right to counsel was violated, which was not harmless,
but rather structural error and both orders must be vacated, and
the matter remanded for further proceedings.

Id. at 38-39.

As set forth in In re Adoption of L.B.M., 639 Pa. 428, 161 A.3d 172

(2017), pursuant to 23 Pa.C.S.A. § 2313(a), a child who is the subject of a

contested involuntary termination proceeding has a statutory right to counsel

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who discerns and advocates for the child’s legal interests, defined as a child’s

preferred outcome. In re Adoption of L.B.M., 639 Pa. at 440-42, 161 A.3d

at 175, 180. See In re Adoption of K.M.G., ___ Pa. ___, 240 A.3d 1218,

1223-24 (2020) (“As we have previously recognized, ‘Section 2313(a)

requires that the common pleas court appoint an attorney to represent the

child’s legal interest, i.e., the child’s preferred outcome,’ and the failure to

appoint counsel constitutes structural error in the termination proceedings.”)

(affirming In re Adoption of K.M.G., 219 A.3d 662 (Pa.Super. 2019) (en

banc)); 23 Pa.C.S.A. § 2313(a) (“The court shall appoint counsel to represent

the child in an involuntary termination proceeding when the proceeding is

being contested by one or both of the parents.”). This Court has authority

only to raise sua sponte the issue of whether the trial court appointed any

counsel for the child, and not the authority to delve into the quality of the

representation. See In re Adoption of K.M.G., ___ Pa. at ___, 240 A.3d at

1223-24.

Instantly, we find this issued waived as Former Stepfather did not raise

an objection to or submit any filing and/or request as to Child’s lack of

representation with the trial court subsequent to the termination proceedings.

See Pa.R.A.P. 302(a) (providing for waiver of issues not first raised in lower

court); Fillmore v. Hill, 665 A.2d 514, 515-16 (Pa.Super. 1995) (“[I]n order

to preserve an issue for appellate review, a party must make a timely and

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specific objection at the appropriate stage of the proceedings before the trial

court.”) (citation omitted)).

Nevertheless, even if not waived, we find this issue is without merit. In

accordance with 23 Pa.C.S.A. § 2313(a), the trial court appointed counsel for

Child pursuant to an order of October 2, 2020, following the filing of the

petition to terminate the parental rights of Child’s biological father on June 2,

2020. Counsel was appointed for the purposes of the involuntary termination

petition, and counsel participated on December 14, 2020, when the trial court

terminated the parental rights of Child’s biological father. We observe that

the petition was not contested. N.T., 12/14/20, at 2-7.

While permissible, the statute does not require that counsel be

appointed beyond the termination proceedings. See 23 Pa.C.S.A. § 2313(a)

(“The court may appoint counsel or a guardian [ad litem] to represent any

child who has not reached the age of 18 years and is subject to any other

proceeding under this part whenever it is in the best interests of the child.”)

(emphasis added)). Therefore, Former Stepfather’s claim that the trial court

was required to appoint counsel for proceedings beyond the termination

matter fails.

In his fifth issue, Former Stepfather maintains the trial court erred in

proceeding with the remaining petition for adoption in contravention to his

right to appeal. See Former Stepfather’s Brief at 39-41. He indicates that,

despite notifying the trial court via email of his intent to appeal the order

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dismissing his petition, which the trial court acknowledged, the trial court

chose to continue with the hearing as to Current Stepfather’s adoption of

Child. Id. at 40-41.

Pa.R.A.P. 1701 states, in relevant part:

(a) General rule.--Except as otherwise prescribed by these
rules, after an appeal is taken or review of a quasijudicial order
is sought, the trial court or other government unit may no longer
proceed further in the matter.

Pa.R.A.P. 1701(a) (emphasis added).

Further, Pa.R.A.P. 1732 provides:

(a) Application to trial court.--Application for a stay of an order
of a trial court pending appeal, or for approval of or modification
of the terms of any supersedeas, or for an order suspending,
modifying, restoring, or granting an injunction during the
pendency of an appeal, or for relief in the nature of peremptory
mandamus, must ordinarily be made in the first instance to the
trial court, except where a prior order under this chapter has been
entered in the matter by the appellate court or a judge thereof.

Pa.R.A.P. 1732 (a) (emphasis in original).

Counsel for Former Stepfather sent an email on March 31, 2021,

expressing the intention to file an appeal from the decree dated March 29,

2021, and recorded March 31, 2021, dismissing his petition for adoption.

Counsel further requested the trial court consider staying the proceeding as

to the remaining petition for adoption pending appeal. See Email, 3/31/21.

While Former Stepfather argues the trial erred in proceeding with the

hearing as to Current Stepfather’s adoption on March 31, 2021, and not

respecting his thirty-day time-period to appeal, Former Stepfather’s mere

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email notification was insufficient to stay or enjoin the trial court from

proceeding. Former Stepfather did not file an appeal until over two weeks

later, after the trial court entered the decree granting Current Stepfather’s

adoption, and at no time filed any request for a stay. As Former Stepfather

had not filed an appeal at the time, the trial court properly proceeded with the

matter and the March 31, 2021, hearing. Therefore, Former Stepfather’s

claim is without merit.

Finally, in his sixth issue, Former Stepfather contends the trial court

erred in proceeding without all of the necessary and relevant information to

determine Child’s best interests. See Former Stepfather’s Brief at 41-45.

Former Stepfather claims the trial court’s failure to allow his petition to

proceed and for him to be heard, and its failure to appoint legal counsel for

Child, prevented the trial court from hearing all evidence necessary to

determine Child’s best interests. Id. at 42-43. In so arguing, Former

Stepfather relies largely on the claims discussed supra. Id. at 42-45.

As indicated supra, the trial court appropriately dismissed Former

Stepfather’s petition for adoption. Likewise, the trial court appropriately

appointed counsel for Child who participated throughout termination

proceedings of the biological father’s parental rights. The trial court,

therefore, did not err in proceeding with the hearing on Current Stepfather’s

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adoption of Child without the testimony of Former Stepfather or the

participation of counsel for Child.17 Thus, Former Stepfather’s claim fails.

To the extent Former Stepfather’s argument relates to a lack of a

hearing on the issue of standing, this argument lacks merit. Pursuant to an

order of March 3, 2021, the trial court noted the parties’ agreement for the

issue of Former Stepfather’s standing to be decided on briefs and directed the

filing of same. Order 3/3/21. Further, any objection or opposition should

have been raised below and is now untimely. Thus, we find this issue is

waived. See Pa.R.A.P. 302(a); Fillmore v. Hill, 665 A.2d at 515-16.

Accordingly, for the foregoing reasons, we affirm the trial court’s

decrees.

Decrees affirmed.

P.J. Panella joins the memorandum.

Judge Murray files a dissenting memorandum.

____________________________________________

17Mother and Current Stepfather suggest that counsel for Child participated
in the hearing and presented Child’s desire to be adopted by Current
Stepfather. Without the Notes of Testimony, this Court is unable to confirm
same. See n.9, 15, supra.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/14/2022

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