IN THE INTEREST OF K.N.L., A MINOR APPEAL OF: L.B. A/K/A T.B.
No. 1 EAP 2022
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
October 19, 2022
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
ARGUED: May 18, 2022
JUSTICE DOUGHERTY
We granted discretionary review to examine whether the lower courts applied appropriate standards for evaluating, and rejecting, a former caregiver‘s asserted in loco parentis status for purposes of standing to intervene in a proceeding to adopt a child in the custody of a foster care agency, pursuant to the Adoption Act,
Background
History of the case
K.N.L. (the child), born in March of 2010, was adjudicated dependent and committed to the custody of the Philadelphia Department of Human Services (DHS) in 2015; she has resided in various foster homes for seven years, since just after turning five years old. The parental rights of the child‘s biological parents were terminated involuntarily on March 6, 2017, and on the same date, the juvenile court vacated the custodial and visitation rights of the child‘s former caregiver, R.B.P., who had been the legal guardian at the time she entered foster care.1 With the child‘s parents and guardian removed as parties, custody of the child transferred to DHS, and further review of the dependency matter proceeded on the juvenile court‘s adoption docket.2 See
Subsequently, appellant T.B.,3 who is the adult child of former guardian R.B.P., also sought to intervene in the proceeding to adopt the child. By motion to intervene filed December 12, 2019, appellant claimed he had been a romantic partner and longtime friend of the child‘s biological mother, as well as a live-in parental caregiver for the child from the time she was four days old until her removal from R.B.P.‘s home, and has since maintained contact and a strong parental bond with the child; these factors, he asserted, demonstrated
The established facts indicate the child‘s biological mother was incarcerated at the time of her birth in March of 2010, and has been incarcerated for all but a few months of the child‘s life. Biological mother relinquished care and custody of the newborn to R.B.P., and a few days later appellant, who had also been in jail on the day the child was born, joined his own mother and the child in R.B.P.‘s home. Juvenile Court Op., 3/24/2021, at 2, 6, citing Testimony of [T].B., N.T. 1/26/2021 at 30. They resided and cared for the child together for the next five years. Id., citing N.T. at 16. The child‘s biological mother also lived with them for approximately five months, after which she ultimately returned to prison. Id., citing N.T. at 18. The child identified R.B.P. as “Mama” and appellant as “Dada.” See In re K.L., 2016 WL 2353033, at *1 n.2. The child‘s removal from R.B.P.‘s home in 2015 occurred during DHS‘s investigation of a child protective services (CPS) report raising abuse allegations against R.B.P., which later included allegations against appellant as well. Juvenile Court Op., 3/24/2021, at 1-2, citing N.T. at 19, 21. Appellant was not named as a party in the dependency petition, is not on the child‘s birth certificate, and has never been a legal guardian. Id., citing N.T. at 22-23.
The record5 further reveals the abuse allegations were unfounded.6 See In re K.L., 2016 WL 2353033, at *1, 4. However, during the investigation, it became apparent the five-year-old child had significant,
From commencement of the dependency case until the juvenile court vacated her custodial rights two years later, R.B.P. was named alongside the child‘s biological parents as a party to the dependency proceeding; as a result, she was appointed counsel, attended hearings, exercised visitation and educational rights, and was engaged in the family‘s case plan as a reunification resource. The docket entries do not list appellant as a person in attendance at any of the hearings. See Dependency Docket, entries dated 4/2/2015-11/14/2016.8 In seeking intervention, appellant averred he “has always been a placement and visitation resource since the child has been deemed dependent.” Motion to Intervene at 2.
Adoption court proceeding
The juvenile court scheduled a hearing on appellant‘s motion to intervene for January 26, 2021. Although there were no responsive motions or preliminary objections to appellant‘s motion, and the parties did not exchange exhibits or offers of proof, the child advocate filed a pretrial memorandum the day before the hearing which included a list of potential witnesses and exhibits, and a statement asserting opposition to appellant‘s standing. Child Advocate‘s Pre-Trial Memorandum, 1/25/2021, at 6-8. Appellant was the only witness at the hearing, which was virtual. His testimony proceeded without objection. He explained his relationship to the child was as her previous caretaker and they both identified him as her dad; he had been engaged to the child‘s mother at one time, they later planned to raise a child together, and because they were both in jail on the day the child was born, he called his mother (R.B.P.) from prison and asked her to “get [his] daughter,” which she did. N.T. at 30. Along with R.B.P., appellant took the child to medical appointments, registered her for preschool, and took her there and back every day. According to appellant, when the child was removed from the home, he presented
When asked why he did not file for legal custody, appellant testified he was attempting to get parts of his criminal record expunged of charges acquired as a juvenile, though they were certified as adult charges.9 He provided the dates of those and subsequent charges and answered questions about them; the court observed the felony charges on appellant‘s record, which could not be expunged, included theft charges and were crimen falsi. The child advocate began to cross-examine appellant regarding the child abuse allegations, however the court halted the line of questioning. Appellant then testified he has since become a certified foster parent, which required him to submit to clearances and background checks, and has had one foster child in his care for a year. He also provided the court with a home investigation report and safety plan from an early stage of DHS‘s 2015 investigation, prior to the child‘s (K.N.L.‘s) removal, which listed appellant and R.B.P. as the adult caregivers in the home, noted the child had made allegations against R.B.P., and noted the child was safe in the home with appellant assigned as the responsible party to supervise. See Safety Plan dated 3/22/2015, [T].B. Exhibit 1.
No other evidence was provided. DHS and the child advocate stated their objections to appellant‘s standing. The child advocate argued there was a finding of dependency for lack of parental care and control during the period appellant said he provided care, which should preclude standing; in addition, the child advocate considered there to be “no credible testimony or evidence [appellant] resided with the biological mother of this child. Instead, there was credible testimony [appellant] resided with his mother, who was a legal guardian of the child.” N.T. at 41-43. Counsel for DHS requested an adverse credibility finding against appellant, and argued binding precedent and the Adoption Act precluded standing. Specifically, DHS argued that in order to have standing, an adoption petitioner must have the consent of the agency under Section 2711 of the Act, or be a blood relative under Section 2531(c) (which excuses certain family members from filing a report of intent to adopt). Moreover, according to DHS, the “number one” reason appellant did not have standing was because binding Superior Court precedent, required a party in an adoption matter must ”currently stand in loco parentis — not previously stand in loco parentis — or obtain written consent [of the guardian].” N.T. at 44-46 (emphasis added), citing In re Adoption of A.M.T., 803 A.2d 203 (Pa. Super. 2002).
The juvenile court denied appellant‘s motion to intervene for lack of standing.10 The court explained its decision was based on prerequisites for third party standing in adoption matters, which dictated such
Citing appellant‘s testimony as the record source for its factual findings, the juvenile court viewed the following “factors” as demonstrating appellant could not establish in loco parentis status. First, despite biological mother‘s relinquishment of custody to appellant‘s mother, appellant never became a legal guardian of the child. Id. at 5-6. Second, appellant was not named as a party to the dependency matter “as there was no existing biological or legal relationship to the [c]hild at the time of her removal.” Id. at 6. Third, appellant and biological mother “rarely resided together as a family unit, except for a very brief period . . . [t]his demonstrates [a] family unit between biological mother, [c]hild and [T].B. never existed.” Id. And, “[m]ost significantly,” the court concluded appellant did not “currently” act in loco parentis because he had not resided with the child in over five years, during which time she has been in the custody of DHS. Id. at 5.
Appeal to the Superior Court
On appeal, a three-member panel of the Superior Court approved of the juvenile court‘s application of caselaw regarding in loco parentis status in relation to adoption matters, and affirmed the denial of appellant‘s motion to intervene on that basis. See Interest of K.N.L., 409 EDA 2021, 2021 WL 4440535, at *14-17 (Pa. Super., Sept. 28, 2021) (unpublished memorandum).11 Responding to appellant‘s argument the juvenile court had misapplied precedential authority, the panel analyzed In re Adoption of Hess, 608 A.2d 10 (Pa. 1992), in light of subsequent decisions of the Superior Court. See id. at *15,
Comparing the facts of Hess, the panel relied on Adoption of A.M.T. and In re N.S., to hold standing may be conferred in the absence of a guardian‘s consent only where the petitioner shared a close family relationship with the child, such as a grandparent. Interest of K.N.L., 2021 WL 4440535, at *16-17. The A.M.T. panel held the guardian‘s consent was not a prerequisite for standing where both of the competing prospective adoptive families consisted of the children‘s biological aunts and uncles, while also “recogniz[ing] that the [c]ourts have clearly rejected attempts to extend the application of Hess to third parties who do not have a familial relationship with the adoptees.” Id. at *16, quoting A.M.T., 803 A.2d at 207-09 (collecting intermediate appellate cases); see also id. at *17, citing In re N.S., 845 A.2d at 886-87 (former foster parent lacked in loco parentis status and standing to pursue visitation or adoption where, after termination of parental rights, the agency had custody, stood in loco parentis, and did not consent).12
Issue and Standard of Review
We granted the petition for allowance of appeal filed by T.B. to consider whether the juvenile court misinterpreted or misapplied the law when it denied appellant standing to intervene in the adoption of the child “despite uncontroverted proof that [he] stood in loco parentis for the subject child by assuming the role of parent and discharging parental duties[.]” Interest of K.N.L., 270 A.3d 1103 (Pa. 2022) (per curiam).
Issues of standing generally raise pure questions of law for which we employ de novo review of a trial court‘s decision. Markham v. Wolf, 136 A.3d 134, 138 (Pa. 2016). As well, a challenge to asserted in loco parentis status in a particular context typically involves a fact-intensive inquiry, and may implicate mixed questions of law and fact. See C.G. v. J.H., 172 A.3d 43, 54 (Pa. Super. 2017), aff‘d, 193 A.3d 891 (Pa. 2018). Where factual findings and credibility determinations are at issue, we will accept them insofar as they are supported by the record. In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012). In matters arising under the Adoption Act, as well as appeals of child custody and dependency decisions, our plenary scope of review is
Arguments
Appellant, T.B.
Appellant argues the juvenile court erred in holding in loco parentis status must be “current” in order to establish standing to intervene in an agency-initiated adoption proceeding. According to appellant, the court‘s edict demands an intervenor to presently act in the place of a parent at the time an action commences, and this premise is not only an inappropriately inflexible standard for matters affecting a child‘s best interests, but also places an insurmountable burden on any prospective adoptive parent who previously assumed parental duties for a child later placed in foster care.
Appellant relies on cases involving standing in private child custody actions between former same-sex partners who had not (or legally could not have, at the time) been legally married. He observes these decisions likened the role of the nonbiological parents to one of step-parent, and viewed the key criteria for in loco parentis standing as the assumption of the role of a parent, and a discharge of parental duties. See Appellant‘s Brief at 18-20, 24-25, 38. He argues this inquiry is not contingent upon “current” in loco parentis status, and notes these issues arise only after a separation. Appellant asserts this Court, in T.B. v. L.R.M., affirmed standing to seek partial custody five years after the parties separated, and in C.G. v. J.H., further articulated “the relevant time frame to determine whether a party stands in loco parentis is when the party developed the relationship with the child[.]” Appellant‘s Brief at 17-19 & n.6, quoting C.G. v. J.H., 193 A.3d at 910. Instead of “currentness,” appellant asserts, “where the child has established strong psychological bonds with a person who although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child‘s eye a stature like that of a parent . . . the child‘s best interest requires that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained[.]” See id. at 16-21 & 18 n.6, citing and quoting T.B. v. L.R.M., 786 A.2d at 917 (emphasis supplied by appellant); J.A.L. v. E.P.H., 682 A.2d 1314, 1319-21 (Pa. Super. 1996) (evidence biological parent‘s child and former partner were comembers of nontraditional family established in loco parentis standing to seek custody; “a third party who has stood in loco parentis [possesses] a prima facie right sufficient to grant standing“) (emphasis supplied by appellant). Appellant argues these decisions caution against placing “overly technical and mechanistic” applications of standing principles before more important factors involving the child‘s best interests, including critical psychological bonds formed with parental caregivers during early childhood. See id. at 17, 20-21, quoting J.A.L., 682 A.2d at 1318; T.B., 786 A.2d at 917.13
Appellees, DHS and Child Advocate
DHS and the child advocate (together, co-appellees) advance overlapping arguments in opposition to appellant‘s claim of standing; they view the juvenile court‘s decision as a proper analysis of the totality of circumstances, and assert appellant failed to meet his burden to “prove that a parent-like relationship has been forged through the parties’ conduct[,]” i.e., to persuade the court he ever assumed the legal duties and obligations of a parent. Brief of DHS at 18, quoting J.A.L., 682 A.2d at 1321; Brief of Child Advocate at 10. They argue the evidence instead demonstrates appellant never assumed parental duties for the child, either before her placement into foster care or in the seven years thereafter. In support of this perspective, co-appellees assert a litany of purported omissions and failures by appellant, including, inter alia, his lack of mention on the child‘s birth certificate despite what they view as contrary testimony he and the child‘s biological mother planned to have and raise the child together, his failure to obtain any form of custody prior to the child‘s removal, and his failure to contest the removal, or to intervene in the dependency matter or participate in any other way as a resource for the child. They
Even if appellant had established he was a primary caregiver for the child prior to her removal, co-appellees view standing to intervene in adoption cases as limited to individuals having current custody or physical care of the child under Section 2531(a) of the Adoption Act, or those with a close familial relationship recognized by the Act in Section 2531(c). Brief of DHS at 16 & n.5, citing
Moreover, co-appellees contend appellant waited five years to assert any legal interest in the child, resulting in now seven years of failure to perform any parental duties, which demonstrates he abandoned any in loco parentis status he may have once had. Brief of DHS at 19-20, citing In re Adoption of Wims, 685 A.2d 1034, 1036-37 (Pa. Super. 1996) (former pre-adoptive foster parents, who previously had in loco parentis status, did not contest children‘s removal from home and waited five months to attempt to intervene, no longer had standing in adoption); Brief of Child Advocate at 37-38, citing, inter alia, In re C.R., 111 A.3d 179, 186 (Pa. Super. 2015) (former foster parent, who waited six months and several permanency reviews to attempt intervention after foster children‘s removal, did not have standing to intervene in dependency matter). DHS contends appellant was not entitled to “wait[] for a more convenient time for himself to seek standing, without regard to [the
Appellee, D.M.
D.M., the child‘s maternal aunt whose petition to adopt her was also pending before the juvenile court, compactly observes DHS and the child advocate evade the central issue of standing as they lack any suggestion appellant would not be aggrieved by its denial. Brief of D.M. at 2, citing In re Adoption of B.E.W.G., 513 A.2d 1061, 1064 (Pa. Super. 1986) (“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.“) (quotation marks omitted). D.M. asserts the child‘s interests would best be served if she can be adopted by a relative or, alternatively, someone with a developed familial bond, such as appellant. D.M. thus argues appellant is aggrieved if denied the opportunity to intervene at this stage, before he can show if he is qualified to adopt. Additionally, D.M. contends the case should be remanded to determine whether DHS‘s consent was unreasonably withheld.
Analysis
I. Petition for Adoption
A. Standing, generally
Standing relates to the capacity of an individual to pursue a particular legal action, and requires the petitioning litigant be adversely affected, or aggrieved, in some way. See Trust Under Will of Ashton, 260 A.3d 81, 88 (Pa. 2021), citing Wm. Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269, 280 (Pa. 1975) (“person who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution“). Traditionally, this requirement is met where an individual demonstrates he or she has “a substantial interest in the subject matter of the litigation that must be direct and immediate, rather than remote, and which distinguishes his interest from the common interest of other citizens.” In re Adoption of J.E.F., 902 A.2d 402, 412 (Pa. 2006). In Pennsylvania, the doctrine of standing is a judicially-created tool intended to “winnow out” litigants with no direct interest in the matter, and to otherwise protect against improper parties. In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003). Consequently, where the General Assembly expressly prescribes the parties who may pursue a particular course of action in Pennsylvania courts, legislative enactments may further enlarge or distill
B. The rule applied in this case
The decisions below, and the parties’ arguments, are framed by their conception of a rule, derived from the Superior Court‘s expressions in Adoption of A.M.T., 803 A.2d at 208 n.4., and In re N.S., 845 A.2d at 886-87, which precludes standing to intervene in an adoption proceeding for a child in the custody of an agency unless one of the following criteria is met: (1) the legislature has specifically conferred standing for a third party, which DHS urges is limited to current caregivers and certain biological family members anticipated under
Preliminarily, we observe there exists no pronouncement of this Court endorsing such a rule, or any of these criteria, as prerequisite to a non-foster-parent, third party‘s demonstration of standing to intervene in an action to adopt a child in the custody of an agency. We nevertheless consider the principles underlying the forwarded rule in order to determine whether the lower courts erred in applying it here.
1. Superior Court precedent
Twenty years ago in Adoption of A.M.T., a panel of the Superior Court applied Hess to hold the refusal of otherwise-required consent from the children‘s guardian, who was a maternal aunt, did not defeat the standing of a paternal aunt and uncle to intervene in an adoption matter commenced by the maternal family. See 803 A.2d at 209. In so doing, the A.M.T. panel broke with what it deemed to be a trend of panel decisions confining Hess to cases involving only grandparents’ petitions to adopt. See id. at 207-08. Recognizing its holding might be viewed as a departure from precedent, the panel supplied a footnote stating, “the general rule remains that, to have standing to file a petition for adoption, a third party must either establish that he or she acts currently in loco parentis to the prospective adoptee or has obtained the written consent from the guardian of the adoptee.” Id. at 208 n.4 (emphasis added). Although A.M.T. cited several prior intermediate appellate decisions as support, the particular origin of this “general rule” restricting standing to a “currentness” requirement is
Subsequently, the Superior Court addressed a former foster parent‘s petitions for both adoption and visitation in In re N.S., 845 A.2d at 886-87. Although co-appellees rely
on In re N.S. (and other cases denying standing to former foster parents) for their position a lapse in caregiving results in the loss of in loco parentis status, starkly different considerations apply in such cases as a result of a foster parent‘s unique duties and agency relationships within the foster system. See Chester Cnty. Child. & Youth Servs. v. Cunningham, 636 A.2d 1157, 1158-59 (Pa. Super. 1994) (nature of the limited relationship of the foster parents to the children precludes standing to adopt absent agency consent), aff‘d, 656 A.2d 1346, 1350 (Pa. 1995) (plurality) (Opinion in Support of Affirmance) (“status of foster parents is subordinate to that of the agency“); see also Wims, 685 A.2d at 1037 (former foster parents who did not contest child‘s removal from their care and did not file intention to adopt until five months after the removal lost what in loco parentis standing they formerly had to pursue adoption). Notwithstanding this factual distinction, the In re N.S. panel‘s brief analysis actually articulated two separate rules: one regarding standing in adoption matters, which adopted verbatim the dicta in A.M.T. described above, and the other invoking this Court‘s decision in T.B. v. L.R.M., a custody case, regarding visitation under the custody act, according to which “standing for a third party can exist only where the legislature has specifically conferred it or where the party stands in in loco parentis to the child.” In re N.S. at 886-87, citing A.M.T., 803 A.2d at 208 n.4; T.B. v. L.R.M., 786 A.2d at 916. Combining the two separate principles, however, the juvenile court below set forth the latter statement, regarding custody, as a rule applicable to this, an adoption case. See Juvenile Court Op., 3/24/2021, at 4 (“For a third party to pursue adoption or visitation, the party must have standing, which can only exist ‘where [the] legislature has specifically conferred it or where the party stands in loco parentis to the child‘.” ), quoting In re N.S., 845 A.2d at 886-87.
2. Application of statutes
(a) Custody
Where a statute prescribes the parties to an action, those individuals have standing in the action, and in custody and visitation matters, we have articulated the custody statute‘s express provisions listing the “individuals who may file an action” for different types of custody — as well as its prior versions providing only for awards “to either parent” and “when grandparents may petition” — demonstrate the legislature‘s intent to include a narrow scope of litigants in these, typically private, family disputes.
(b) Adoption
Unlike the custody statute‘s explicit standing prerequisites, the Adoption Act, under Subchapter B, titled “Parties,” and Section 2312, titled “Who may adopt,” provides, “Any individual may become an adopting parent.”
Notwithstanding this more open-ended approach, the Act does, in other provisions, impose exacting substantive and procedural requirements regarding the official record necessary to support a decree in both private adoptions and those involving children in foster care. These include, inter alia: who may petition for termination of parental rights; which reports, home studies, background checks, and other investigations are necessary; whose consents are required and when they may be excused; strict pleading, exhibit, and hearing requirements; the court‘s directive in evaluating the petition; and the effects of the decree. See
In addition to the procedural role each statutory provision plays in advancing an adoption petition toward permanency, they serve the critical broadscale function of scrutinizing the safety, wellbeing, and viability of the resulting court-sanctioned, permanent parental relationship at each step along the way, necessarily limiting a
In Hess, where grandparents sought to intervene in an adoption, and in J.E.F., regarding adoption petitions of an aunt and uncle, we rejected an agency‘s contention its consent, required under
902 A.2d at 411; see id. at 412, 416 (agency‘s refusal to consent does not “deprive a person who otherwise has a stake in the litigation standing to pursue that interest“). Instead, the Act contemplates the adoption court, not the agency, will perform an analysis of a conferred or withheld consent of a relevant party as part of “an overall substantive evaluation” of the child‘s best interests in the merits of proceeding on an adoption petition, and this substantive inquiry necessarily follows, but has no relation to, the preliminary inquiry into standing. Id. at 412, 416. We reiterate: the agency‘s withheld consent is not a bar to standing and has no part in that analysis; rather, it is an issue to be considered subsequently and substantively within the paramount context of the child‘s best interests, her individual needs and welfare, in relation to the petition.16
In both Hess and J.E.F., we also considered the role of
Similarly, in J.E.F., the provision underscored such familial relationships may inhere a substantial, direct, and immediate interest which surpasses the interests of ordinary strangers. J.E.F., 902 A.2d at 414, 416. DHS‘s bald assertion this provision exclusively enumerates the whole class of individuals who may adopt, and therefore limits standing to those individuals, is unpersuasive here. Foremost, like consents under
Accordingly, “nothing in the Act precludes any party from filing a petition for adoption, nor is there anything to preclude the trial court from entertaining multiple adoption petitions and then determining the best interests of the child.” J.E.F., 902 A.2d at 416. Though we recognize a more stringent test necessarily applies in private custody matters due to the “traditionally strong right of parents to raise their children as they see fit[,]’ . . . [t]here is no suggestion that a more stringent test for standing should apply in adoption matters, based upon the inherent nature of the action” where no such parental rights continue to exist. Id. at 412-13 & n.10, quoting T.B. v. L.R.M., 786 A.2d at 916. In these latter situations, the appropriate parameters of standing are not drawn from the statute‘s provisions, but from traditional jurisprudential standing principles. See id. at 413, 415-17 (“[U]nder both the Act and traditional notions of standing, it is not the consent of the [a]gency that determines the preliminary question of standing to be heard under the Adoption Act, but the existence of a substantial, direct, and immediate interest in the proceeding. . . . We do not doubt that traditional standing principles would warrant a denial of standing to a party in an adoption matter, no less than in other cases, where such an interest was lacking.“). Moreover, the petitioning party must still meet the requirements of the Act, and “standing does not mean that they will, or should” prevail in subsequent merits determinations, i.e., substantive evaluations of the child‘s best interests. Id. at 416, 418.
Thus, one who seeks to adopt a child in the custody of an agency must demonstrate a substantial, direct, and immediate interest in the subject matter of the litigation — that is, a “genuine, and not merely a theoretical,” interest in assuming the role of a permanent parent who best meets the child‘s needs and welfare — which surpasses such an interest of ordinary, unrelated strangers. J.A.L. v. E.P.H., 682 A.2d at 1318; see J.E.F., 902 A.2d at 414. The Adoption Act, through its Sections 2531 and 2711 (and potentially other provisions17) supplies certain criteria which, if established, carry with them an expectation of permanency — sufficient in most, if not all, instances to demonstrate a genuine and substantial interest on the face of an adoption petition. There may be other circumstances giving rise to this interest, and we do not foreclose the opportunity for a petitioner in such an instance to be heard in the substantive matter of the child‘s best interests.
We proceed to examine whether the in loco parentis relationship asserted by appellant presents one such opportunity.
II. Appellant‘s Motion to Intervene
A. Intervention
A nonparty who seeks to intervene in an adoption matter must establish a “recognized legal interest” — one that is enforceable through, or affected by, the adoption proceedings — whether or not the moving party would ultimately be
In Hess, the Court found such a legally enforceable interest under the custody statute‘s provisions, both allowing grandparents to seek custody and visitation under certain circumstances, and terminating any rights conferred thereunder if and when the child is adopted. See Hess, 608 A.2d at 12-13, citing
continue to seek enforcement of custodial rights after parents’ rights have been terminated, up until the entry of an adoption decree. See id.; see also A.M.T., 803 A.2d at 206-08. And because the Adoption Act identified grandparents as relatives excused from filing a report of their intent to adopt under
The custody statute has been updated several times since Hess was decided. Though grandparents’ rights remain conditioned on certain circumstances, the statute now provides, without condition, a “person who stands in loco parentis to the child” may file an action “for any form of physical custody or legal custody[,]” and, this right “shall be automatically terminated upon [an] adoption.”
entry of an adoption decree. See
We turn our review to the common law doctrine of in loco parentis.
B. Standing In Loco Parentis
In loco parentis is a legal status, and proof of essential facts is required to support a conclusion that such a relationship exists. T.B. v. L.R.M., 786 A.2d at 916, citing Kransky v. Glen Alden Coal Co., 47 A.2d 645, 646 (Pa. 1946). “The phrase ‘in loco parentis’ refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.” Id. Long before our custody statute granted standing based upon the status, in loco parentis was recognized as the sole common law exception to the rule restricting custody and visitation actions to the legal parents and grandparents expressly authorized by statute. See id. Our child custody jurisprudence provides much of the context for the doctrine, and though adaptable, warrants due consideration of the circumstances in which different types of cases arise; unlike custody disputes between arguably fit parents, agency-initiated adoption matters involve especially vulnerable children in the custody of an entity, and the rights of their natural parents no longer exist.
The foundational elements of in loco parentis status, upon which all other considerations may rise or fall, include the assumption of a parental role, and the discharge of parental duties. See C.G. v. J.H., 193 A.3d at 907-08, 910; T.B. v. L.R.M., 786 A.2d at 916-17, 919-20. The assumption of a parental role must originate with a legal parent‘s assent, whether through encouragement or acquiescence. See C.G. v. J.H., 193 A.3d at 907-08, quoting T.B. v. L.R.M., 786 A.2d at 907 (a third party in this type of relationship cannot “place himself in loco parentis in defiance of the parents’ wishes and the parent/child relationship“). In cases where natural parents have relinquished care or are otherwise absent, the Superior Court has articulated a slightly more flexible iteration of this principle: although potentially in defiance of a parent‘s wishes, an assumption of parental duties may be achieved through “some legally cognizable,” i.e., non-illicit means. See, e.g., In re C.M.S., 884 A.2d 1284, 1288-89 (Pa. Super. 2005), appeal denied, 897 A.2d 1183 (Pa. 2006). Furthermore, contrary to the present position of DHS, any purported “defiance” of a parent‘s wishes — as it relates to a third party‘s in loco parentis status — corresponds to the formation of the parent-child relationship with the third party, not its continuation. See, e.g., A.J.B. v. A.G.B., 180 A.3d 1263, 1277-79 (Pa. Super. 2018) (biological custodial parent could not, in hindsight, expunge ex-spouse, nonbiological parent‘s relationship with child once paternity
In child custody disputes raising challenges to in loco status — most often involving a natural parent and a nonbiological former spouse or partner — courts examine the parties’ conduct for objective evidence of an assumed parental role and duties. One of the most obvious demonstrations of an in loco parentis relationship is where the natural parent and third party lived together with child as a “family unit” while co-parenting the child. See T.B. v. L.R.M., 786 A.2d at 919. This is not a restrictive rubric, and family is an evolving concept. See C.G. v. J.H., 193 A.3d at 912-13 (Dougherty, J., concurring). The nature of the relationship between a natural parent and third party to each other “has no legal significance to the determination of whether [the third party] stands in loco parentis to [the child].” T.B. v. L.R.M., 786 A.2d at 918-19 (“The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties.“). What is significant, though, is the third party‘s relationship to the child, and how that relationship was forged, i.e., through assented assumption of a position more significant to the child than a frequent caretaker. See id.; see also In re C.B., 861 A.2d 287, 296 (Pa. Super. 2004) (important aspect of in loco parentis doctrine is whether the third party lived with the child in a family setting “irrespective of its traditional or nontraditional composition“).
In J.A.L. v. E.P.H., the seminal Superior Court decision reached in 1996, several years prior to statutory incorporation of in loco parentis status in custody actions and pronouncements of the rights of same-sex couples to marry and adopt, the court considered the significance of the strong psychological bonds infants form with the caregivers who live with them during early childhood, even if they were not the child‘s primary caregivers. See 682 A.2d at 1320. The court observed that, with respect to the nonbiological parent‘s standing, the presumption against third parties in custody disputes (in favor of the biological family‘s privacy and autonomy):
must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child‘s eye a stature like that of a parent. Where such a relationship is shown, our courts recognize that the child‘s best interest requires that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained even over a natural parent‘s objections.
Id. Accordingly, the J.A.L. court held, where the nonbiological parent lived with the child for the first ten months of its life and acted as a parenting partner to the child‘s mother, the opportunity for bonding to occur was established, and the young child‘s recognition of the nonbiological parent as a significant person in her life demonstrated “a constant, sincere interest in
We have also recognized, however, not all strong psychological bonds are positive ones. See, e.g., In re T.S.M., 71 A.3d 251, 271 (Pa. 2013) (children‘s needs and welfare necessitated termination of parental rights despite strong but damaging bonds). More recently, in C.G. v. J.H., we addressed the legal significance of a bond in the context of an in loco parentis relationship, and concluded its consideration for the purpose of a standing analysis must be secondary to, and result from, a demonstrated assumption of a parental role and discharge of parental duties. See 193 A.3d at 909-10 (bonding evaluation not required where evidence did not demonstrate assumption and discharge of parental duties). In this regard, the import of the J.A.L. decision is not to introduce an examination of bonding into a standing inquiry, but rather to recognize a bond exists with a nonbiological caregiver just as with the natural parent where the caregiving role is assumed during a child‘s infancy and early childhood; that is, where one “has lived with the child and provided care, nurture, and affection, assuming in the child‘s eye a stature like that of a parent” since the child‘s birth, the primacy of the resulting bond warrants a prima facie right to in loco parentis status to be heard regarding the substance of the child‘s best interests. J.A.L. v. E.P.H., 682 A.2d at 1319-22.
In a similar fashion, consideration of the parties’ post-separation conduct in custody matters is also secondary to the demonstration of an assumed parental role and discharge of parental duties, relevant insofar as it sheds light on whether the person seeking standing was ever viewed as a parental figure. See C.G. v. J.H., 193 A.3d at 910-11. Although rendering all post-separation conduct irrelevant in such standing disputes would, in some circumstances, ignore the purposeful withholding of access to the child by the legally-recognized parent, in other circumstances it could afford third parties a greater advantage than a natural or adoptive parent who had otherwise demonstrated a relinquishment of parental claims to a child. Id. at 910-11 & n.17; see id. at 917-18 (Wecht, J. concurring) (“If there is evidence that the third party has assumed parental status and discharged parental duties during the relationship, and if there is evidence that the custodial parent purposefully withheld the child, then post-separation conduct should not be considered for purposes of denying standing to the third party. This Court should not countenance even the suggestion that a parent unilaterally can erase from a child‘s life a third party who, in all material respects, acted as a parent.“).
Notably, a substantial body of Superior Court jurisprudence clearly recognizes “third parties who are not designated foster parents may seek adoption when they can establish that they stand in loco parentis to the child.” Cunningham, 636 A.2d at 1159, aff‘d, 656 A.2d at 1349, citing In re Adoption of J.M.E., 610 A.2d 995 (Pa. Super. 1992) (couple who raised child for four years since infancy had standing to file termination action based on in loco parentis status, despite lack of legal custody), appeal denied, 618 A.2d 402 (Pa. 1992). These cases dovetail with one prominent aspect of decisions regarding foster-parent standing: they articulate a critical distinction between prospective-adoptive foster parents, with whom all parties expect the relationship to be permanent from its inception — so the prospective-adoptive foster parents have in loco parentis status — and all other foster parents, whose relationship to the child all parties expect to be temporary
Moreover, when a would-be party‘s in loco parentis status is challenged, the inquiry is necessarily fact-intensive and case-specific. C.G. v. J.H., 193 A.3d at 911. Where the status is established, however, “[t]he rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child.” Id. at 907 (emphasis added), quoting T.B. v. L.R.M., 786 A.2d at 917; Peters, 891 A.2d at 710 (same); see id. at 910.
With these considerations in mind, we return to the record before us.
C. The Present Appeal
We accepted review to determine whether the juvenile court erred when it denied appellant standing — based on in loco parentis status — to intervene in the adoption of the child. Applying the foregoing analysis to the present appeal, we conclude the juvenile court did err. The court interpreted and applied relevant Adoption Act provisions strictly, as principles of limitation on standing in an adoption action, in contravention of
To the extent the juvenile court‘s assessment can be read as a “totality of the circumstances” application of these principles, we review whether, as co-appellees
Finally, though we have disposed of the notion in loco parentis status for purposes of standing to intervene in an adoption proceeding must be “current” — as in a present caregiving capacity — we are nevertheless faced with the conundrum of appellant‘s five-year absence, reflecting at least half of the child‘s life. Appellant concedes an in loco
parentis status can be terminated. Co-appellants contend, at bottom, it‘s simply been too long since appellant has performed a parental duty. DHS, arguing appellant was not entitled to “wait for a more convenient time for himself to seek standing, without regard to the child‘s needs and welfare,” underscores a useful marker, tacitly invoking the Adoption Act‘s grounds for involuntarily terminating a parent‘s rights based on parental abandonment of duties. Brief of DHS at 10. See
We do not, at this juncture, suggest the full force of a termination of
Conclusion
Accordingly, we hold the juvenile court applied an incorrect analysis of appellant‘s standing to intervene in an adoption based on his asserted in loco parentis status, and therefore misapplied the law. A proper standing inquiry reviews whether a non-foster-parent third party seeking to pursue a petition to adopt a child in the custody of an agency has a genuine and substantial interest in formalizing a permanent parental relationship with the adoptee-child, which surpasses the interest of ordinary, unrelated strangers.
An individual‘s previously-held in loco parentis status may, in a particular circumstance, demonstrate this requisite interest and allow the party to be heard with regard to the substance of an adoption matter wherein the paramount consideration is the child‘s best interest. In such a case, the individual asserting in loco parentis status must demonstrate a legitimately-acquired assumption of the parental role, and a discharge of parental duties. Important to this inquiry in the context of an adoption is whether the in loco parentis relationship authenticates an expectation of permanency, or a sincere and firm commitment to performing a non-temporary parental role in the life of
the child. The adoption court‘s review is not limited to these considerations, but it must, in all cases, determine whether the evidence demonstrates the assumption of a parental role and discharge of parental duties.22 In
parentis status has been abandoned or terminated — and so with it standing — the inquiry must also consider the reasons provided for periods when parental duties were not performed. Decisions in this regard must be based on competent evidence of record.
Finally, whether such standing endures is a threshold matter, and has no bearing on whether an intervenor‘s petition will pass muster in a substantive analysis of the child‘s best interests in relation to further requirements under the Adoption Act or within the court‘s discretion.
We therefore reverse the Superior Court‘s decision, and remand to the juvenile court for a hearing de novo and proceedings consistent with this opinion before a different judge.23
Justice Donohue files a concurring opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.