[J-27-2023] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
J.C.D, III AND A.M.D., : No. 13 MAP 2023
:
Appellees : Appeal from the Order of the
: Superior Court at No. 1449 MDA
: 2022 dated November 14, 2022
v. : Quashing the appeal from the York
: County Court of Common Pleas,
: Domestic Relations, order dated
A.L.R. AND T.A.D.-R., : October 6, 2022, at No. 2022-FC-
: 1432-03.
Appellants :
: ARGUED: May 23, 2023
CONCURRING OPINION
JUSTICE WECHT DECIDED: October 18, 2023
I.
The Supreme Court of the United States has long recognized Americans’
fundamental right to raise their children as they see fit. A century ago, at the height of
the Lochner era, 1 that Court announced that the Fourteenth Amendment’s due process
clause “denotes not merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according
1 The Lochner era was a period in the United States Supreme Court’s history —
taking its name from the decision in Lochner v. New York, 198 U.S. 45 (1905) — that
extended into the 1930s and was characterized by the Court’s invocation of the due
process clause to strike down laws regulating economic affairs. See Bert Co. v. Turk,
298 A.3d 44, 88-89 (Pa. July 19, 2023) (Wecht, J., concurring).
to the dictates of his own conscience, and generally to enjoy those privileges long
recognized at common law as essential to the orderly pursuit of happiness by free men.” 2
More recently, in Troxel v. Granville, the United States Supreme Court reiterated
that the due process clause of the Fourteenth Amendment “includes a substantive
component” that protects “the interest of parents in the care, custody, and control of their
children.” 3 In Troxel, the paternal grandparents, whose son had died, sought visitation
with their grandchildren. They sued the children’s mother under a Washington statute
which stated broadly that any person could petition for visitation rights at any time and
which authorized the trial court to grant visitation to such persons when visitation would
serve the best interests of the child. The Supreme Court of Washington found the statute
to be facially unconstitutional in part because the statute interfered with a parent’s
2 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also Pierce v. Soc'y of the
Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534–35 (1925) (recognizing
“the liberty of parents and guardians to direct the upbringing and education of children
under their control”); Parham v. J. R., 442 U.S. 584, 602 (1979) (“Our jurisprudence
historically has reflected Western civilization concepts of the family as a unit with broad
parental authority over minor children. Our cases have consistently followed that course;
our constitutional system long ago rejected any notion that a child is the mere creature of
the State and, on the contrary, asserted that parents generally have the right, coupled
with the high duty, to recognize and prepare [their children] for additional obligations. . . .
The law’s concept of the family rests on a presumption that parents possess what a child
lacks in maturity, experience, and capacity for judgment required for making life’s difficult
decisions. More important, historically it has recognized that natural bonds of affection
lead parents to act in the best interests of their children.”) (internal citations and quotation
marks omitted).
3 530 U.S. 57, 65 (2000). The lead opinion in Troxel was authored by Justice
O’Connor and was joined by three other Justices. Justice Souter concurred in the result,
agreeing that the Fourteenth Amendment protects a parent’s interest in raising one’s
children. Id. at 77. Justice Stevens and Justice Kennedy dissented, but they nonetheless
identified the Fourteenth Amendment as the source of the liberty interest. Id. at 86-87,
95. Hence, a majority of Justices held that the rights of parents in the “care, custody, and
control of their children” are grounded in substantive due process.
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fundamental right in the care, custody, and control of the parent’s children. 4 On appeal,
the United States Supreme Court agreed that, as applied to the parent in the case, the
Washington statue “unconstitutionally infringe[d] on that fundamental parental right.” 5 “So
long as a parent adequately cares for his or her children (i.e. is fit),” the Court stated,
“there will normally be no reason for the State to inject itself into the private realm of the
family to further question the ability of that parent to make the best decisions concerning
the rearing of that parent’s children.” 6 The Court announced that “the Due Process
Clause does not permit a State to infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge believes a ‘better’ decision could be
made.” 7
Soon after Troxel, this Court decided Hiller v. Fausey. 8 In that case, the maternal
grandmother, whose daughter had died, sought partial custody of her grandson by suing
the child’s father pursuant to 23 Pa.C.S. § 5311. 9 The father challenged the grant of
partial custody as a violation of his substantive due process rights guaranteed by the
4 Id. at 63.
5 Id. at 67.
6 Id. at 68-69.
7 Id. at 72-73.
8 904 A.2d 875 (Pa. 2006).
9 23 Pa.C.S.§ 5311 (repealed) stated:
If a parent of an unmarried child is deceased, the parents or
grandparents of the deceased parent may be granted reasonable partial
custody or visitation rights, or both, to the unmarried child by the court
upon a finding that partial custody or visitation rights, or both, would be
in the best interest of the child and would not interfere with the parent-
child relationship. The court shall consider the amount of personal
contact between the parents or grandparents of the deceased parent
and the child prior to the application.
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Fourteenth Amendment. 10 Reviewing Troxel, this Court noted that a majority of the
United States Supreme Court had determined that there was “a constitutionally protected
right of parents to make decisions concerning the care, custody, and control of their
children,” a right that includes deciding the appropriateness of visitation with third parties,
and had concluded that “fit parents are entitled to a presumption that they act in the best
interests of their children.” 11 This Court held that, Troxel notwithstanding, the
Pennsylvania statute satisfied strict scrutiny and was therefore constitutional because it
sufficiently protected parents’ fundamental substantive due process right to raise their
children. 12
As I recently noted elsewhere, and in more detail, I have serious doubts about the
jurisprudential wisdom of laboring creatively to mine unenumerated rights in the ore of the
Fourteenth Amendment’s Due Process Clause, a clause that safeguards procedural
rights but does not, by its terms, manufacture substantive liberties. 13 Instead, it is the
Ninth Amendment, which recognizes that the enumeration of certain rights in the
Constitution should not be construed to deny or disparage other rights retained by the
people, and the Fourteenth Amendment’s Privileges or Immunities Clause, which
(properly read) also protects unenumerated rights, that serve as far more solid
foundations for the protection of our liberties. 14 Unfortunately, these important domains
of constitutional law largely have been ignored and neglected due to the confusing
muddle of the United States Supreme Court’s substantive due process jurisprudence.
10 Id. at 879.
11 Id. at 883.
12 Id. at 890.
13 See Bert Co., 298 A.3d at 86-95 (Wecht, J., concurring).
14 Id. at 95-102.
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Judges and lawyers should explore the Ninth Amendment and the Privileges or
Immunities Clause so that those provisions may ripen over time into a proper
jurisprudential foundation for protection of important but unenumerated rights, including
the right of parents to raise their children.
It is puzzling as well that few turn to the Pennsylvania Constitution as a source of
protection for our fundamental rights and liberties. Instead, the universal default
continues to be reflexive invocation of federal “substantive due process rights.” In
Pennsylvania cases involving the right to parent, such as Hiller and D.P. v. G.J.P., 15
neither the litigants nor this Court cited the Pennsylvania Constitution as a source of the
right, relying instead upon the Fourteenth Amendment. To some extent, this is
understandable, inasmuch as Pennsylvania’s Constitution does not contain the due
process provision upon which Troxel relied. Instead, Article 1, Section 1 of our
Commonwealth’s charter 16 has been repeatedly (but largely unthinkingly) crammed into
an interpretive equivalency with the Due Process Clause of the Fourteenth Amendment,
notwithstanding the lack of any textual basis for equalizing the procedural rights of the
latter with the obviously substantive rights of the former. 17 With respect to vindication of
15 146 A.3d 204 (Pa. 2016).
16 “All men are born equally free and independent, and have certain inherent and
indefeasible rights, among which are those of enjoying and defending life and liberty, of
acquiring, possessing and protecting property and reputation, and of pursuing their own
happiness.” PA. CONST. art. I, § 1.
17 See, e.g., Shoul v. Pa., Dep’t of Transp., Bureau of Driver Licensing, 173 A.3d 669,
676 (Pa. 2017) (citing Article 1, Section as the state counterpart to the due process clause
of the Fourteenth Amendment); Khan v. State Bd. of Auctioneer Exam’rs, 842 A.2d 936,
946 (Pa. 2004) (defining substantive due process as an “esoteric concept interwoven
within our judicial framework to guarantee fundamental fairness and substantial justice,”
and citing Article 1, Section 1 as the source of protection for the interest in practicing one’s
profession); Nixon v. Commonwealth, 839 A.2d 277, 286 (Pa. 2003) (“[Article 1, Section
(continued…)
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process rights (including, inter alia, protection of “remedy by due course of law”), our law
should more properly refer to Article I, Section 11 of our Pennsylvania Constitution. But
that is a matter for another day.
As a result of the prevailing jurisprudential paradigm, when claims alleging
deprivation of a constitutionally protected interest are brought under the Pennsylvania
Constitution, this Court has analyzed them under a two-part rubric: strict scrutiny when a
fundamental interest is at issue, and rational basis review when a “protected but not
fundamental right” is impacted. 18,19 Because the protection of fundamental rights under
the Pennsylvania Constitution has not yet been well-developed or properly articulated,
there is no exhaustive list of those rights that warrant strict scrutiny. However, in the
Nixon case, this Court did identify the right to privacy, the right to marry, and the right to
procreate as examples. 20 It would be a small step rather than a leap to conclude that the
right to raise one’s children and to direct the care, control, and custody of those children
is among those fundamental rights protected by the Pennsylvania Constitution. There’s
no need to insist on hammering the federal “due process” moniker onto these rights, which
are among the “liberty” and “happiness” rights recognized as “inherent rights of mankind”
by our own Article I, Section 1 constitutional text.
1], like the due process clause in the Fourteenth Amendment of the United States
Constitution, guarantees persons in this Commonwealth certain inalienable rights.”).
18 Germantown Cab Co. v. Philadelphia Parking Authority, 206 A.3d 1030, 1042
(Pa. 2019).
19 I leave to another day further discussion of my disagreement with the peculiar
development and application of the rational basis test in Pennsylvania jurisprudence. See
Shoul, 173 A.3d at 688-94 (Wecht, J., concurring).
20 Nixon v. Commonwealth, 839 A.2d 277, 287 (Pa. 2003).
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II.
As the Majority acknowledges, while this case involves the assertion of a
constitutional right, no one has directly challenged the constitutionality of the statute. 21 In
D.P., this Court weighed the constitutionality of a statute that provided grandparents with
standing in custody cases when the parents had been separated for six months. There,
although the parents were separated, they agreed nonetheless that their children should
not have contact with the grandparents. In response, the grandparents filed a complaint
for partial custody. The trial court ruled that the statute burdened the parents’
fundamental liberty interest and that the statute was not sufficiently narrowly-tailored
because, as this Court noted, “it improperly assumes, based solely on the parents’
separated status, that their joint decisions regarding the raising of their children are
infected by a degree of unfitness.” 22 This Court stated that the right of parents to make
decisions concerning their children was a fundamental right protected by the Due Process
Clause of the Fourteenth Amendment. 23 Considering that the family was not involved in
the court system and that the parents, notwithstanding their separation, agreed that the
grandparents should not be involved with the children, we “conclude[d] that the fact of a
parental separation for six months or more does not render the state’s parens patriae
interest sufficiently pressing to justify potentially disturbing the decision of presumptively
21 Maj. Op. at 15.
22 D.P., 146 A.3d at 207. The parents also raised an equal protection argument, but
this Court did not reach it. D.P., 146 A.3d at 216 n.18. However, the trial court found that
argument compelling. It relied upon Superior Court case law which held that a
grandparent did not have standing to pursue custody when the parents were part of an
intact family (based on prior iterations of the standing statute), and it concluded that “there
was no constitutionally sound basis to support a classification whereby married parents
who are separated should be treated differently [than intact married parents].” Id. at 207.
23 Id. at 210.
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fit parents concerning the individuals with whom their minor children should associate.”24
Accordingly, this Court determined that the provision which granted standing to
grandparents when the parents had been separated was unconstitutional.
Although D.P. analyzed a prior version of the grandparent standing statute, the
factual similarities between that case and the one we address here certainly raise a
question as to the constitutionality of the statute that we consider today. Here, the parents
agree about the lack of contact between the grandparents and the grandchildren. What
is more, the parents here maintain an intact family, and they have not invited court
intervention into their family. If an actual separation was insufficient to justify state
interference with the parents’ right to care, control, and custody of their children in D.P.,
it seems unlikely that the decision of presumptively fit parents in an intact relationship
constitutionally could be subject to such interference.
III.
Nonetheless, as previously noted, no challenge, whether facial or as applied, has
been raised regarding the constitutionality of the statute implicated in this case. Instead,
we are charged only with determining whether the order finding that the grandparents
have standing is appealable on an interlocutory basis.
Our General Assembly has made the policy decision that grandparents have a
place of importance in children’s lives and, accordingly, has chosen to provide them with
standing to pursue custody. Two statutes confer such standing. Section 5324 provides
standing to grandparents to pursue any form of physical or legal custody when the
relationship with the child began with the consent of the parent or under a court order and
the grandparent is willing to assume responsibility for the child, and also when the child
24 Id. at 215.
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is either dependent, at risk, or has lived with the grandparent for at least twelve
consecutive months. 25 Section 5325 grants standing for grandparents to pursue partial
physical custody in three scenarios: when the grandparent’s child (the child’s parent) is
deceased; when the parents of the child are engaged in custody proceedings, do not
agree on the grandparents’ custody, and the grandparents have a prior relationship with
the child that began by parental consent or court order; or when the child has lived with
the grandparent for at least twelve consecutive months. 26 In a prior iteration of the
custody scheme, the General Assembly had specifically expressed a public policy of
ensuring continuing contact between children and their grandparents when their parents
are deceased, divorced, or separated. 27 As evidenced by the two statutes that currently
provide for grandparent standing, the General Assembly has left no reason to doubt that
it continues to favor a policy that fosters continuing contact between children and their
grandparents.
IV.
In the case we confront today, the trial court concluded that the grandparents have
standing to pursue custody. This was not a final order. Accordingly, as the Majority
correctly notes, a party seeking to appeal must establish that the order satisfies the
requirements of Pa.R.A.P. 313. 28 A collateral order is one “separable from and collateral
to the main cause of action where the right involved is too important to be denied review
and the question presented is such that if review is postponed until final judgment in the
25 23 Pa.C.S. § 5324.
26 23 Pa.C.S. § 5325.
27 See 23 Pa.C.S. § 5301 (repealed).
28 See Maj. Op. at 4-5.
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case, the claim will be irreparably lost.”29 The parties agree that the first two elements —
that the order is separable from the main cause of action and that the right involved is too
important to be denied review — are satisfied here. The only question is whether the
claim will be irreparably lost if its resolution is delayed. I agree with the Majority’s
conclusion that the parents’ reliance upon K.C. v. L.A., 128 A.3d 774 (Pa. 2015), is
misplaced. 30 I agree as well that the parents cannot rely simply upon assertions that their
right to raise their children is burdened in order to demonstrate that their claim will be
irreparably lost in the meantime. 31
With respect to the final element of the collateral order doctrine, irreparable loss
generally has been applied to issues of privilege. 32 This Court has focused upon the cost
of litigation on at least one occasion, but that ruling was premised upon federal law
supporting a clear policy of cost containment in aviation litigation. 33 In another case, this
29 Pa.R.A.P. 313(b).
30 Maj. Op. at 8-10.
31 Id. at 10-11.
32 See, e.g., In re Estate of McAleer, 248 A.3d 416, 425 (Pa. 2021) (concluding that
the protection of confidential materials would be irreparably lost); Commonwealth v.
Williams, 86 A.3d 771, 784 (Pa. 2014) (finding irreparable loss because, “once the
prosecutor’s notes are disclosed, the disclosure cannot effectively be undone”);
Commonwealth v. Kennedy, 876 A.2d 939, 944 (Pa. 2005) (holding that a challenge to
disclosure of work-product would be irreparably lost); Ben v. Schwartz, 729 A.2d 547, 552
(Pa. 1999) (“[T]here is no effective means of reviewing after a final judgment an order
requiring the production of putatively protected material.”)
33 Pridgen v. Parker Hannifin Corp., 905 A.2d 422, 433 (Pa. 2006) (“[W]e conclude
that the substantial cost that Appellants will incur in defending this complex litigation at a
trial on the merits comprises a sufficient loss to support allowing interlocutory appellate
review as of right, in light of the clear federal policy to contain such costs in the public
interest.”).
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Court considered the cost of litigation in an immunity claim, but also recognized that the
“interests sovereign immunity protects are not entirely pecuniary.” 34
Here, the parents suggest that the time and cost burdens attendant to custody
litigation impinge on their rights to parent, and that this burdening represents irreparable
harm. Both this Court and the Supreme Court of the United Stated have noted the
burdens associated with child custody litigation. 35 And we have noted that revisions to
our custody statutes have separated standing and merits so as to afford “parents the
ability to bifurcate the proceedings by seeking dismissal for lack of standing, thereby
requiring that any such preliminary questions be resolved before the complaint’s merits
are reached.”36 We have opined that such bifurcation also serves to protect parental
rights by providing a mechanism for dismissal at an early stage, “thereby relieving families
of the burden of litigating . . . merits where a sufficient basis for standing is absent.” 37
Nonetheless, these observations addressed the litigation process in the trial court, not the
question of whether the litigation burden sufficed to qualify as irreparable loss for
collateral order purposes. In D.P., this Court did not address appealability or the collateral
order doctrine because the trial court there had found the statute to be unconstitutional,
34 Brooks v. Ewing Cole, Inc., 259 A.3d 359, 375 (Pa. 2021).
35 See, e.g., Troxel, 530 U.S. at 75 (“the burden of litigating [custody] can itself be ‘so
disruptive of the parent-child relationship that the constitutional right of a custodial parent
to make certain basic determinations of the child’s welfare becomes implicated’”) (quoting
Troxel, 530 U.S. at 101 (Kennedy, J. dissenting)); Hiller, 904 A.2d at 886 & n.20 (in
discussing whether the statute was narrowly tailored, this Court stated, “we cannot
conclude that such a benefit always accrues in cases where grandparents force their way
into grandchildren’s lives through the courts….” and recognized the “strain that custody
litigation places on the children as well parents and grandparents.”).
36 D.P., 46 A.3d at 213.
37 Id.
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which ruling prompted a direct appeal to this Court. 38 The D.P. Court cited Troxel for the
proposition that custody litigation “can itself impinge upon parental rights.” 39 But neither
D.P. nor Troxel spoke to the issue that is before us today.
Rather than a claim of irreparable loss, the parents’ complaint brings to mind “the
type of inconvenience which any litigant might suffer. . . .”40 If the standing decision is
appealable only after a final order is entered, the parents must expend the time, money,
and energy necessary to reach that point. But that is true in every case. If expenditure
of resources when such expenditure could be avoided through an interlocutory appeal
sufficed for Rule 313 purposes, then every interlocutory order presumably would satisfy
the irreparable loss prong of the collateral order rule. The exception would devour the
rule.
The claim here is not akin to the claims of privilege or immunity that have justified
collateral order appeals. This Court has not held that the burden of litigation alone is
sufficient to show that a claim will be irreparably lost. The Majority is correct in concluding
that this is not a collateral order. 41
V.
In affirming the Superior Court’s order here, the Majority aptly observes that “our
decision today may be inconsistent” with a previous Superior Court decision in an
unrelated case, K.W. v. S.L., 157 A.3d 498 (Pa. Super. 2017). 42 In K.W., the Superior
38 See 42 Pa.C.S. § 722(7).
39 46 A.3d at 213 (citing Troxel, 530 U.S. at 75).
40 Shearer v. Hafer, 177 A.3d 850, 860 (Pa. 2018).
41 Maj. Op. at 15.
42 See Maj. Op. at 16 n.8.
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Court concluded that an order granting prospective adoptive parents standing was
appealable on an interlocutory basis as a collateral order. The Superior Court concluded
there that the father’s claim would otherwise be irreparably lost because allowance of
additional custody litigation without a resolution of the standing issue would burden the
father’s right to parent his child. Citing D.P., the Superior Court concluded that the right
to parent included “the right to be free of custody litigation involving third parties.” 43 For
the Superior Court, this included consideration of the “substantial financial burden” and
the loss of “months of time caring for and bonding with” the child. 44
As we often have stated, “the holding of a judicial decision is to be read against its
facts.” 45 The facts of K.W. were atypical, and arguably distinguish that case from the
circumstances before us today. In K.W., the father was not informed of the mother’s
pregnancy, nor of the fact that she had placed the child for adoption. The child was placed
with adoptive parents before the father was even aware of the child’s existence. The
adoption agency attempted to contact the father and was first able to do so a month after
the child’s birth. Various procedural issues delayed the case, and the father’s preliminary
objections to standing were not finally resolved until the child was about one year old. In
permitting the interlocutory appeal, the Superior Court weighed “the unique
circumstances” including the fact that the father “was deprived of [the child] by a private
adoption agency without the benefit of a hearing or other due process protections” and
that the court “could not hope to fully vindicate or restore [the father’s] rights by the time
of his second appeal.” 46 The Superior Court’s language in holding the standing order to
43 K.W., 157 A.3d at 504.
44 Id.
45 Lance v. Wyeth, 85 A.3d 434, 453 (Pa. 2014).
46 K.W., 157 A.3d at 504.
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be appealable on an interlocutory basis may have swept more broadly than necessary,
but it was undeniable in that case that the father was deprived at length of his right to
direct the care, custody, and control of his child.
Those facts are very different from those of today’s case. Here, Parents maintain
custody of Children. As such, even if our Court was bound by the Superior Court’s
rationale (which, of course, we are not), K.W. would not control. 47
* * * *
The order sub judice is not a collateral order within the meaning of Rule 313. I join
the Majority Opinion.
47 To the extent that K.W. is not distinguishable, I would disapprove of it. The Majority
does not specifically decide that K.W. is (or is not) distinguishable. Instead, it “see[s] no
reason to disapprove of K.W. at this time” because the parties here have not addressed
the case. Maj. Op. at 16 n.8. Under the circumstances, I take no exception to this
exercise of restraint.
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