In Re Adoption of Hess

WIEAND, Judge,

dissenting:

The majority, in its great concern for the rights of biological grandparents, has rewritten the Adoption Law by adding notice and hearing requirements not included by the legislature and has condemned Melanie Lynn and Matthew James Hess to additional years of uncertainty. I respectfully dissent.

The real issue in this appeal is whether a maternal grandmother and step-grandfather (hereinafter “grandparents”) have standing to intervene in proceedings to adopt grandchildren after parental rights to the children have been terminated finally and custody has been awarded to Family and Children’s Service, which has placed the children for adoption. The trial court dismissed the grandparents’ petition to intervene, and the grandparents appealed. I would affirm.

Melanie Lynn Hess (age six) and Matthew James Hess (age five) are children who were born to Tina Marie and *315Kenneth John Hess, husband and wife. In June, 1987, the children were taken by their parents from the home of David and Carol Hess, the childrens’ grandmother and step-grandfather,1 where they had been residing with four siblings,2 and temporarily placed in the custody of Family and Children’s Service. On September 25, 1987, the parents of Melanie and Matthew executed consents to adoption of the children; and thereafter, the agency placed the children in the home of pre-adoptive parents. Reports of intent to adopt were filed on November 6, 1987; and on November 24, 1987, the court terminated the parental rights of Tina Marie and Kenneth John Hess. On March 17, 1988, the grandparents filed a petition to intervene, to stay the adoption proceedings, and to obtain custody of the children. The agency and the prospective adoptive parents filed preliminary objections in which they averred that the grandparents lacked standing to intervene. These preliminary objections were sustained by the court, and the petition to intervene was dismissed.

“The ‘core concept’ in standing questions is whether the person seeking relief is adversely affected or ‘aggrieved’ in any way by the matter which he seeks to challenge through the judicial process. To have standing, the adversely affected party must allege an immediate, direct and substantial injury.” In re Adoption of B.E.W.G., 355 Pa.Super. 554, 560, 513 A.2d 1061, 1064 (1986), quoting 1000 Grandview Assn. v. Mt. Washington Assn., 290 Pa.Super. 365, 367, 434 A.2d 796, 797 (1981). Standing to intervene in a pending action, as pertinent to adoption proceedings, is proper when the petitioner “could have joined as an original party in the action or could have been joined therein” or when “the determination of such action may affect any legally enforceable interest of such [petitioner] whether or *316not he may be bound by a judgment in the action.” Pa.R. C.P. 2327(3) and (4).

In the instant case, the petitioning grandparents have no legally cognizable interest in the adoption of Melanie and Matthew Hess. The interests of the biological parents were terminated by court decree. The effect of the court’s decree was to terminate also the interests of other biological relatives.

The policy which dictates this apparently harsh result is well established. The entire body of law pertaining to adoption harmonizes in order to place an adopted child in the shoes of a natural child in all legal respects, failing only to alter the biological makeup of the child. The intention and result of the law is to enfold an adopted child in his new family so as to be indistinguishable from his new siblings in every possible respect.
Rights of inheritance are changed; parental and filial rights and duties are altered; birth records are substituted; adoption records are impounded. In every possible respect, all family relationships are thus reestablished within the adopting family and all ties with the natural family are eradicated.

Faust v. Messinger, 345 Pa.Super. 155, 160-161, 497 A.2d 1351, 1353 (1985).

Although the courts of this Commonwealth have not been called upon to consider the rights of grandparents to intervene in adoption proceedings, the courts of other jurisdictions have generally denied intervention by grandparents when at least one of the natural parents is alive and has consented to the adoption. See: Christian Placement Service v. Gordon, 102 N.M. 465, 697 P.2d 148 (1985) (paternal grandmother could not intervene in adoption based on her status as a grandmother after her son’s parental rights had been terminated and the child’s mother had consented to adoption); Krieg v. Glassbum, 419 N.E.2d 1015 (Ind.App. 1981) (grandparents have no standing to intervene in adoption proceedings); Petition of Benavidez, 52 Ill.App.3d 626, 10 IllDec. 362, 367 N.E.2d 971 (1977) (same); Hayes v. *317Watkins, 163 Ga.App. 589, 295 S.E.2d 556 (1982) (grandparents may not intervene in adoption proceeding where at least one parent is alive and has consented to adoption); Muggenborg v. Kessler, 630 P.2d 1276 (Okla.1981) (consent to adoption by natural parents cannot be defeated by opposition of grandparents). See also: Adoption of D.J.H., 18 Pa.D. & C.3d 424 (Allegheny, 1979) (grandmother may not intervene or inspect adoption records where parental rights have been terminated; grandmother is not a party and her consent to adoption is not required). Compare: In re: Adoption of B.E.W.G., 379 Pa.Super. 264, 549 A.2d 1286 (1988) (grandparents had standing to intervene in adoption proceedings where they had been awarded temporary legal custody and action for permanent legal custody was pending at time when father clandestinely removed children from jurisdiction and surrendered them for adoption in another jurisdiction).

Appellants concede that under the Adoption Act3 the only consents required for a valid adoption are those of the natural parents. They argue, however, that they were entitled to notice under 23 Pa.C.S. § 2721. This section of the statute provides that “[n]otice of the hearing [on the adoption petition] shall be given to all persons whose consents are required and to such other persons as the court shall direct.” The purpose of notice to additional persons, they argue, is to permit intervention by interested parties.4 Because grandparents are interested parties, they contend, their petition for intervention should have been allowed.

This argument is not persuasive. The only consents required for the adoption of the children in this case were the consents of the parents and Family and Children’s Service, to whom the court awarded custody of the children after the parental rights had been terminated. Consents to *318adoption had been executed in writing by the parents, and no attempt had been made to revoke these consents within the forty day waiting period required by 23 Pa.C.S. § 2504(a). Thereafter, Family and Children’s Service petitioned to confirm the parents’ consent; a hearing to determine the validity of the consents was scheduled; and notice thereof was given to the natural parents. When the parents failed to appear, the court took testimony in their absence and entered a decree terminating parental rights and placing the children in the custody of Family and Children’s Service.

Therefore, only the consent of Family and Children’s Service is necessary for adoption. There is no requirement that notice of the adoption proceedings be given to the children’s biological relatives. Similarly, the Act makes no provision for intervention by biological relatives. Their rights, if any, came to an end with the decree terminating the rights of the biological parents. The language of 23 Pa.C.S. § 2721 cannot be interpreted as giving additional rights to biological relatives by implication.

If there is no statutory language granting a specific right to intervene, appellants argue, there is nevertheless a right to intervene which arises from an underlying policy to keep families together. In support of this contention they cite the Juvenile Act, 42 Pa.C.S. § 6301, et seq., which states as its purpose the preservation of family unity; the Children and Minors Act, 23 Pa.C.S. § 5313, which permits partial custody or visitation by grandparents when a child is removed from the grandparents’ home after living there for twelve months or more; and the general policy of the law that, absent compelling reasons, siblings should be raised together. See: Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694 (1986). This jgoal of keeping the family together must also be given consideration, they argue, in determining family rights in adoption proceedings. This argument is also unpersuasive.

Both the Children and Minors Act and the Juvenile Act are concerned with children whose parents continue to enjoy *319parental rights and duties. While parental rights to children continue, the law’s primary goal is to preserve the family unit and keep the members together. The Adoption Act does not share this goal. It is intended to provide a permanent family relationship for children only after the rights of the biological parents have been surrendered, forfeited, or otherwise terminated. To effect this purpose, the Adoption Act severs all biological relationships and creates a new parent/child relationship with a new family and new relatives. There is no place for biological relatives of the child in the scheme of the Adoption Act. See: Faust v. Messinger, supra. Thus, the policies which prompted the Children and Minors Act and the Juvenile Act are entirely different than the goals and purposes of the Adoption Act.

If the Adoption Act does not contemplate them as parties, appellants argue, their right to intervene is nevertheless guaranteed by fundamental constitutional protections. They rely on decisions pertaining to certain aspects of family life which are deemed fundamental. These decisions include: Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (right to procreate is fundamental and cannot be statutorily denied); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (statute outlawing contraception violates constitutional right to privacy of married couples); and Inez Moore v. City of Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (zoning ordinance allowing only members of nuclear family to reside together violates due process clause of the 14th Amendment). There is no merit in this argument. Although the Supreme Court of the United States has recognized that certain fundamental rights pertain to marriage and the family, in this case those rights were severed voluntarily by the parents. The rights of other biological relatives, being derivative, were also terminated when parental rights were terminated. See: Faust v. Messinger, supra (grandmother’s right to visitation terminated by adoption of grandchild). See also: J. & E. v. M. & F, 157 N.J.Super. 478, 385 A.2d 240 (1978), cert. denied, 77 N.J. 490, 391 A.2d 504. Appellants had not previously sought or *320been awarded legal custody of Melanie and Matthew, and as grandparents they had not acquired rights which survived the decree terminating the rights of the parents. Also terminated by the court’s termination decree were the rights of other biological relatives, including siblings. Therefore, appellants do not acquire standing to intervene in their own right or by asserting that they are representing the interests of the children’s siblings whom the grandparents have taken into their home and whose custody has been awarded to them.

Similarly, appellants cannot claim standing by asserting that they represent the interests of the children who are about to be adopted. The statute, at 23 Pa.C.S. § 2313, authorizes a court to appoint counsel or a guardian ad litem for the children, but neither the Adoption Act nor any other law bestows upon biological grandparents the right to act on behalf of grandchildren who are not in their custody and whose parents have surrendered them for adoption.

I am constrained to conclude, therefore, that the appellant-grandparents in this case do not have such an interest as will allow them to intervene in a proceeding to adopt children after the rights of the children’s parents have been terminated with the parents’ consent.5 If the result seems harsh, it is justified by a policy which seeks to serve the best interests of the children by promptly enfolding them in another permanent family relationship with new parents and new relatives.

Appellants contend that it was also error for the trial court to dismiss their request for custody of their grandchildren.6 Although the appellate courts of this Common*321wealth have occasionally affirmed court orders awarding custody of children to their grandparents in order to preserve the family, on all of such occasions the family continued to exist.7 Here, parental rights have been terminated and, in a legal sense, the rights of biological relatives, being derivative, have been severed. The issue now is one of adoption, not custody. By court order, custody of Melanie and Matthew has been awarded to Family and Children’s Service; and that agency has placed the Children for adoption. Appellants’ attempt to delay the adoption by relitigating custody is untimely and inappropriate. Cf. In re D.K.W., 490 Pa. 134, 142, 415 A.2d 69, 73 (1980) (termination of parental rights under Adoption Act renders moot any custody issues under the Juvenile Act).

I would hold, therefore, that the trial court was correct when it dismissed the petition by the appellant-grandparents to intervene and relitigate custody issues in adoption proceedings, where adoption had been consented to by Family and Children’s Service, the legal custodian of the children, after parental rights had been terminated.

. David Hess is the brother of the children’s natural father, and therefore is also the children’s paternal uncle.

. David and Carol Hess have legal and physical custody of the children’s four sisters pursuant to court orders entered in October of 1985 and October of 1987. Prior to the instant action, no proceedings had ever been initiated by the grandparents to obtain legal custody of Melanie and Matthew.

. 23 Pa.C.S. § 2101, et seq.

. The provisions of 23 Pa.C.S. § 2503(b) require that notice of a hearing to terminate parental rights be given to a grandparent when the parent is less than eighteen years of age. In the instant case, both parents were more than eighteen years of age when the consents to adoption were executed.

. On February 11, 1988, the biological parents signed a statement in which they indicated a preference that the children be adopted by the appellant-grandparents. This, however, came too late. Their parental rights had been finally terminated in November of the prior year.

. Petitioners do not assert their right to custody of the children under the Children and Minors Act which allows for custody and/or visitation by grandparents, but terminates that right upon adoption of the children. 23 Pa.C.S. §§ 5313 and 5314. Petitioners agree that such a claim, even if successful, would provide only fleeting relief since the children tire on the verge of adoption.

. In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), the Supreme Court awarded custody of small children to maternal grandparents in preference to a father, where the children had resided with their grandparents since birth and had been raised with a half-brother. In In re David L.C., 376 Pa.Super. 615, 546 A.2d 694 (1988), the Superior Court affirmed an order of a trial court which had awarded custody of a young boy to his great-grandmother in preference to a mother, where psychological bonding had taken place between the boy and his great-grandmother, who had cared for him almost continuously since birth, and the mother’s sole purpose in seeking custody had been to surrender the child for closed adoption.