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

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2023 PA Super 10

IN RE: ADOPTION OF: A.M.W., A : IN THE SUPERIOR COURT OF

MINOR : PENNSYLVANIA

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APPEAL OF: M.J.G. :

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:

:

: 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., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,

J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN,

J.

DISSENTING OPINION BY KUNSELMAN, J.: FILED JANUARY 19, 2023

In this matter, Former Stepfather asks this Court to consider, inter alia:

1) whether the orphans’ court erred when it denied his competing petition for

adoption; 2) whether the orphans’ court erred when it failed to rule on his

petition to intervene; and 3) whether the orphans’ court abused its discretion

in failing to appoint legal counsel and/or a guardian ad litem for the Child.

See Majority Opinion at 3-4; see also Former Stepfather’s Original Brief at 4.

The Majority agrees with Former Stepfather in all three respects.

Consequently, it vacates the Current Stepfather’s adoption decree, as well as

the order dismissing Former Stepfather’s petition to intervene and adoption

petition, and it remands for a new hearing and for the appointment of counsel

for the Child. See Majority Opinion, at 19-20.

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I respectfully dissent from my learned colleagues in the Majority on each

point. Summarily, I conclude the orphans’ court correctly dismissed Former

Stepfather’s competing adoption petition – i.e., his independent cause of

action – because Mother withheld her consent. Furthermore, the orphans’

court correctly denied Former Stepfather’s petition to intervene – i.e.,

intervene in the separate litigation involving the Current Stepfather’s adoption

petition – because Former Stepfather was not aggrieved by Current

Stepfather’s petition. Finally, the orphans’ court had discretion to appoint

representation for the Child in an adoption proceeding but was not mandated

to do so; and this Court lacks the authority to review sua sponte such a

decision. Therefore, I would affirm the orphans’ court’s decree granting the

adoption of the Child by Current Stepfather.1

I. Former Stepfather’s Competing Adoption Petition

This action began when Mother filed a petition to terminate the parental

rights of Biological Father, contemporaneously with Current Stepfather’s

petition to adopt the Child. Former Stepfather then filed a competing petition

for adoption. Significantly, Mother only consented to the adoption petition

filed by Current Stepfather. Noting Mother’s lack of consent, the orphans’

court dismissed Former Stepfather’s competing petition.

The Majority opines that the orphans’ court erred when “focused on the

absence of Mother’s consent” in dismissing Former Stepfather’s petition. See

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1 I only address the three issues discussed by the Majority, but I would

conclude Former Stepfather’s other appellate issues merit no relief.

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Majority Opinion at 13. According to the Majority, the orphans’ court should

have conducted a hearing to determine whether Former Stepfather had

standing. The Majority reaches this conclusion by relying on our Supreme

Court’s recent decision in Interest of K.N.L., 284 A.3d 121 (Pa. 2022).

However, the Majority relies too heavily on the similarities between the

instant case and K.N.L., without analyzing the key difference between the two

cases - that K.N.L. involves an agency adoption and this case involves a

stepparent adoption. See Majority Opinion at 10, 13. In its misconstruction

of K.N.L., the Majority conflates the question of standing to petition for

adoption in an agency adoption, with the question of whether a parent’s

withheld consent defeats a stepparent adoption. The question of standing is

not the right question to ask for a stepparent adoption. Instead, the question

is whether an individual may file a competing adoption petition, over the

withheld consent of the child’s parent whose rights remain intact. That answer

is no.

The Adoption Act provides: “Any individual may become an adopting

parent.” 23 Pa.C.S.A. § 2312. This provision is only the starting point in any

standing analysis involving an adoption. See generally K.N.L., 284 A.3d at

139-140. “Notwithstanding this [] 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.” Id. at 139; see also

23 Pa.C.S.A. § 2701 (relating to contents of a petition for adoption).

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Among those other provisions is Section 2711, which mandates that a

party seeking to adopt must obtain the consent of certain individuals. See id.

at 139; see also 23 Pa.C.S.A. § 2701(7).2 Sometimes those required

consents may be excused. When the Majority overlooked the distinction

between an agency adoption and a stepparent adoption, it failed to appreciate

the difference between an agency’s consent and a parent’s consent. And it

misunderstood when the orphans’ court may excuse the consent requirement

and when it may not.

The Adoption Act mandates that the parents of a child must consent to

the child’s adoption. 23 Pa.C.S.A. § 2711(a)(3).3 In a typical agency adoption,

like K.N.L., consent of the parents is not required, because the parental rights

of both parents have already been terminated. See 23 Pa.C.S.A. § 2714.4

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2“A petition for adoption shall set forth: (7) That all consents required by

Section 2711 (relating to consents necessary to adoption) are attached as

exhibits or the basis upon which such consents are not required.” 23

Pa.C.S.A. § 2701(7).

3“(a) General Rule. -- Except as otherwise provided in this part, consent to

an adoption shall be required of the following: (3) The parents or surviving

parent of an adoptee who has not reached the age of 18 years.” 23 Pa.C.S.A.

§ 2711(a)(3).

4 Section 2714 of the Adoption Act 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 if, after notice and hearing as

prescribed in section 2513 (relating to hearing), the court

(Footnote Continued Next Page)

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Following the termination of parental rights, the agency becomes the child’s

guardian, and thus the agency must consent to any subsequent adoption. See

23 Pa.C.S.A. § 2711(a)(5);5 see also K.N.L, 284 A.3d at 140; and see In re

Adoption of J.E.F., 902 A.2d 402, 411 (Pa. 2006). Critically, the Adoption

Act authorizes the orphans’ court to dispense with the agency’s consent, in

limited circumstances when “the adoptee is under 18 years of age and has no

living parent whose consent is required.” 23 Pa.C.S.A. § 2713(2).

Our Supreme Court has interpreted these provisions to mean that an

agency, acting as the child’s guardian following the termination of parental

rights, may not withhold consent to defeat a potential adoption petition. See

In re Adoption of Hess, 608 A.2d 10, 14 (Pa. 1992) (citing 23 Pa.C.S.A. §

2713(2)). Subsequent cases addressed whether an agency’s withheld consent

deprives an individual of standing to file an adoption petition. Our Supreme

Court explained that the agency’s “withheld consent alone does not destroy a

party’s standing under [the] traditional standing doctrine.” In re Adoption

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finds that grounds exist for involuntary termination under

section 2511 (relating to grounds for involuntary

termination).

23 Pa.C.S.A. § 2714.

5 “(a) General rule. – Except as otherwise provided in this part, consent to

an adoption shall be required of the following: (5) The guardian of the person

of an adoptee under the age of 18 years…whenever the adoptee has no

parent whose consent is required.” 23 Pa.C.S.A. § 2711(a)(5) (emphasis

added).

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of J.E.F., 902 A.2d 402, 412 (Pa. 2006). K.N.L. further defined the standing

doctrine, but only as applied in agency adoptions. K.N.L., 284 A.3d at 140.6

This is where the Majority goes astray. K.N.L. and J.E.F. held that an

agency’s withheld consent under Section 2711(a)(5) is not a bar to standing,

because the orphans’ court may excuse that consent requirement under

Section 2713(2). See J.E.F., 902 A.2d at 404-05; see also K.N.L., 284 A.3d

at 140 (“As a result of the broad discretionary authority conferred to the

adoption court by Section 2713 to dispense with certain consents in the

critical context of the child’s best interest, and the Act’s predication of a decree

on a multitude of other requirements subject to the court’s satisfaction, we

squarely rejected any purported relationship between the threshold issue of a

party’s standing, and the substantive impact of the Act’s consent

requirements.”)(emphasis added); at 141 (“We reiterate: the agency’s

withheld consent is not a bar to standing and has no part in the analysis[.]”)

(emphasis added).

Those precedents, however, have no bearing on a stepparent adoption,

where the parent, whose rights remain intact, has withheld her consent.

Nothing in J.E.F., nor K.N.L., nor Section 2713 suggests that an orphans’

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6 A primary function of K.N.L. was to dispel this Court of its mistaken belief

that only an individual who currently has in loco parentis status, at the time

of the adoption petition, has standing. See K.N.L., 284 A.3d at 138 (“[W]e

observe there exists no pronouncement of this Court endorsing such a rule,

or any of these criteria [articulated by our precedents], as perquisite 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.”).

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court has discretionary authority to dispense with such a parent’s consent

under Section 2711(a)(3). Thus, K.N.L. is plainly inapposite. In my view,

the Supreme Court’s rationale in K.N.L. clearly indicates why its holding only

applies where the parental rights of both parents have been terminated, and

should not be extended to stepparent adoptions where one parent retains

parental rights:

“[N]othing in the [Adoption] Act precludes any party from

filing a petition for adoption, nor is there anything to

preclude a trial court from entertaining multiple adoption

petitions and then determining the best interests of the

child. 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, there 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. In these latter situations,

the appropriate parameters of standing are not drawn from

the statue’s provisions, but from traditional jurisprudential

standing principles.

K.N.L., at 142 (citations and internal quotations omitted) (emphasis added).

It makes sense that the Adoption Act would allow for a broader pool of

potential adoptive parents in an agency case, where the child is essentially a

temporary orphan. It would not be in the child’s best interest to limit the

number of qualified third parties seeking to become the child’s new parent(s).

This underscores why an agency’s withheld consent does not, and should not,

defeat an adoption petition.

In a stepparent adoption, by contrast, the parent’s rights remain intact.

That parent retains the right to decide who gets to engraft themselves into

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the child’s family tree, and even that right is limited. Here, Mother’s parental

rights remain intact, and thus her consent is required by law, not only as it

relates to Former Stepfather’s petition, but for any adoption. Unlike the

consent of the agency-guardian (under Section 2711(a)(5)) in an agency

adoption, the orphans’ court is not authorized to dispense with a parent’s

consent (under Section 2711(a)(3)) in a stepparent adoption. Section

2713(2) only authorizes the court to dispense with a living parent’s consent

when that parent’s consent is “not required” – i.e., when that parent’s rights

have been previously terminated. See 23 Pa.C.S.A. §§ 2711(a)(5), 2714.

Thus, the standing question is simply the wrong question to ask

regarding Former Stepfather’s petition to adopt. Yes, “any individual may

become an adoptive parent” under Section 2312, but that individual must still

abide by the rest of the Adoption Act’s “exacting substantive and procedural

requirements,” including the consent requirements set forth in Section 2711.

K.N.L., 284 A.3d at 139; see also 23 Pa.C.S.A. § 2701(7) (relating to

contents of a petition for adoption). Put another way, whether Former

Stepfather had “standing” to file a competing petition is something of a red

herring. Regardless of whether Former Stepfather had standing to file a

petition for adoption, his petition cannot proceed as a matter of law, because

Mother withheld her consent. See 23 Pa.C.S.A. § 2701(7). The orphans’ court

correctly dismissed Former Stepfather’s competing adoption petition, because

the court recognized that it had no authority under Section 2713(2) to

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dispense with her consent. And without Mother’s consent, Former Stepfather

cannot meet the prima facie case necessary for a stepparent adoption.7

II. Former Stepfather’s Petition to Intervene

In addition to filing a competing petition for adoption, Former Stepfather

filed a separate petition to intervene in the adoption proceeding filed by

Current Stepfather. The orphans’ court, having already dismissed his

competing petition for adoption, did not rule on Former Stepfather’s petition

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7 I have additional policy concerns with the “breathtakingly broad” implications

of the Majority’s decision. See Troxel v. Granville, 530 U.S. 57, 67 (2000)

(holding unconstitutional Washington state’s nonparental visitation statute,

which provided standing to “any person” and “at any time.”). Application of

the Majority’s holding now opens the courthouse doors to any and all former

partners to file their own petition for adoption any time one parent seeks to

terminate the rights of the other parent. Under the majority’s decision today,

these former partners are now entitled to – at the very least – a hearing on

standing to adopt the parent’s child, even over the objection of the parent.

Former Stepfather could have proceeded with a private termination and

stepparent adoption petition at any point during his marriage to Mother. Such

action would have required Mother’s consent. By eliminating this consent

requirement after his divorce from Mother, the Majority gives him a right he

would not have had while he was her spouse. With all due respect, the

Majority’s extension of K.N.L. to a stepparent adoption leads to an “absurd”

interpretation of the Adoption Act. See Commonwealth v. Humphrey, 283

A.3d 275, 289 (Pa. 2022) (“When interpreting statutory provisions, we

presume that the General Assembly does not intend a result that is absurd,

impossible of execution, or reasonable.” (citing 1 Pa.C.S.A. § 1922(1))).

I recognize Former Stepfather has been in the Child’s life since her birth. It

may seem cruel – and certainly not in the Child’s best interests – if Mother

severed the relationship between the Child and the Former Stepfather. As I

discuss below, however, this inequity does not arise, because in my view, the

custody rights of an in loco parentis former partner survive a stepparent

adoption like this one.

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to intervene, thereby effectively denying it. Intervention to file a competing

adoption petition would not be appropriate, as I explained above. However,

intervention to block Current Stepfather’s adoption of the Child presents a

different question, which requires a separate analysis. On appeal, Former

Stepfather argues he had standing to intervene, because he had an interest

in the litigation as an in loco parentis individual with custody rights. To answer

the intervention question, we must determine whether Former Stepfather has

standing.

K.N.L. set forth the following standing principles. “Standing relates to

the capacity of an individual to pursue a particular legal action, and requires

the petitioning litigant to be adversely affected, or aggrieved, in some way.”

K.N.L., 284 A.3d at 136 (citing Trust Under Will of Ashton, 260 A.3d 81,

88 (Pa. 2021) and Wm. Penn Parking Garage, Inc. v. City of Pittsburgh,

346 A.2d 269, 280 (Pa. 1975) (“a 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”)).

As for standing to file an adoption petition in an agency case, the Court

held: “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.” Id. at 150.

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In the context of a petition to intervene in an adoption case, the Court

explained that a nonparty who seeks to intervene 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 bound by

the adoption decree. K.N.L., 284 A.3d at 142-43 (citing Hess, 608 A.2d at

12; Pa.R.C.P. 23278). Thus, the Court concluded that if the would-be

intervenor can establish an in loco parentis status, then the individual has also

established the “recognized legal interest” for purposes of Rule 2327. Id. at

144. See also K.N.L., 284 A.3d at 152-53 (Donohue, J. Concurring).

In K.N.L., the Court remanded for a new hearing. At that hearing, if

the appellant could establish his in loco parentis status, then he would have a

“legally enforceable interest” that would be “affected” by the pending action

involving the foster family’s adoption petition. In such a scenario, the

appellant’s petition to intervene would be granted under Rule 2327(4). See

id., at 151; see id. at 152 (Donohue, J. Concurring).

Again, the difference between the K.N.L. and the instant matter is

paramount. In K.N.L., the appellant’s recognized legal interest would be

affected by the foster family’s adoption; here, by contrast, Former

Stepfather’s recognized legal interest would not be affected by the Current

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8 Rule 2327(4) provides: “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: (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.C.P. 2327(4).

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Stepfather’s adoption. As a result, Former Stepfather’s petition to intervene

fails under Rule 2327(4).

To explain, in K.N.L., the appellant’s interest would be “affected” by the

adoption by the foster parents, because such an adoption would ultimately

terminate the appellant’s future right to custody of the child, pursuant to 23

Pa.C.S.A. § 5326 (“Effect of an adoption”). The Court explained: “[The Child

Custody Act] 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.’” Id. at 143 (citing 23 Pa.C.S.A. §§ 5324(a), 5326). “[I]f appellant

ever had any right to assert in loco parentis standing in a custody matter, it

would be extinguished upon entry of an adoption decree.” Id. at 144 (citing

23 Pa.C.S.A. § 5326; E.T.S. v. S.L.H., 54 A.3d 880 (Pa. Super. 2012) (under

Section 5326, former live-in romantic partner of the children’s custodial aunt

lost in loco parentis right to seek custody of the children when aunt adopted

the children)).

Here, because this matter involves a stepparent adoption, the

application of these principles produces a different result. Assuming Former

Stepfather stands in loco parentis, he would have a demonstrable “legally

enforceable interest” under Rule 2327(4). As such, Former Stepfather has

standing to intervene so long as his legally enforceable interest is “affected”

by the underlying adoption proceeding involving Current Stepfather and

Mother.

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Critically, Former Stepfather’s recognized legally enforceable interest –

that is, his in loco parentis custody rights – are not affected by the Current

Stepfather’s adoption of the Child. I conclude that the custody rights of

Former Stepfather, afforded to him by Mother in their divorce decree (and as

an implicit result of his in loco parentis status), survive the Current

Stepfather’s adoption of the Child.

Because this adoption involves a stepparent, as opposed to a third-party

adoption by a foster parent (as in K.N.L.) or by an aunt (as in E.T.S.), the

effect of the adoption yields a different result under Section 5326 of the Child

Custody Act. As the Supreme Court observed in K.N.L., the effect of an

adoption by an unrelated third party terminates all prior rights. However, I

believe one’s in loco parentis custody rights survive an adoption when the

child is adopted by a stepparent.

The Child Custody Act addresses the effect of an adoption:

Any rights to seek physical custody or legal custody rights

and any custody rights that have been granted under

section 5324 (relating to standing for any form of physical

custody or legal custody) or 5325 (relating to standing for

partial physical custody and supervised physical custody) to

a grandparent or great-grandparent prior to the adoption of

the child by an individual other than a stepparent,

grandparent or great-grandparent shall be automatically

terminated upon such adoption.

23 Pa.C.S.A. § 5326 (“Effect of adoption”) (emphasis added).

Although the statute allows grandparents and great-grandparents, who

received custody rights under Section 5324, to retain those rights following a

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stepparent adoption, the statute is notably silent regarding those third-parties

who received in loco parentis custody rights under Section 5324(2). While

our Supreme Court was clear that such rights will be terminated following an

adoption by a foster parent, K.N.L., 284 A.3d at 144, it does not follow that

such in loco parentis custody rights will necessarily be extinguished by a

stepparent adoption. The statute itself does not expressly provide for the

termination of these rights in a stepparent adoption.

In a stepparent adoption, one parent retains their rights. Thus, it follows

that because the parent’s rights remain, the rights of the individual, who

received in loco parentis status from the parent, also remain. By contrast,

after the rights of both parents have been terminated, the rights of an

individual who received in loco parentis status from those parents are

automatically terminated upon adoption by foster parents. K.N.L., 284 A.3d

at 143-44 (citing 23 Pa.C.S.A. § 5326).

It would be unreasonable to conclude, in the absence of clear authority,

that a stepparent adoption will automatically sever the relationship between

a child and a parent’s former partner who has in loco parentis status – a former

partner who had supported and nurtured the child, and considered the child

as their own. An automatic severance would certainly not be in a child’s best

interests.

Moreover, the Child Custody Act is perfectly equipped to address any

potential acrimony between the parent, the adoptive parent, and the former

partner, while simultaneously protecting the best interests of the child. See

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23 Pa.C.S.A. §§ 5328(a) (relating to the custody factors), 5327(b)(relating to

the presumption between parents and third parties).9

Indeed, the automatic termination of in loco parentis custody rights

seems contrary to precedent. In T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001),

the Court considered whether the former same-sex partner of the mother had

in loco parentis standing to seek custody of the child. The mother had argued

that, because the former partner lacked standing to adopt the child – given

the fact that this case predated the legalization of same-sex marriage – the

former partner necessarily lacked standing to seek in loco parentis custody.

The Court disagreed. T.B., 786 A.2d at 918-19. “The ability to marry the

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9 It would not be the case that the child would be left with “three legal

parents.” See Majority Opinion at 19 (citing In re: Adoption of R.A.B., 1364

EDA 2007 (Pa. Super. 2008) (unpublished memorandum)). Rather, such a

holding would simply mean that a third individual has custody rights – a

possibility not foreign to the Child Custody Act. See, e.g., 23 Pa.C.S.A. §§

5234(2), 5325 (relating to grandparent standing).

I note further that the Majority’s reliance on R.A.B. is misguided for two

reasons. First, R.A.B. was decided in an unpublished memorandum in 2007.

Per 210 Pa. Code § 65.37, only non-precedential decisions filed after May 1,

2019, may be cited for their persuasive value. See also Pa.R.A.P. 126(b).

An unpublished memorandum decision filed prior to May 2, 2019, shall not be

relied upon or cited by a Court or a party in any other action or proceeding

(except in certain circumstances which are not present here). See 210 Pa.

Code § 65.37(b).

Second, R.A.B. was predicated upon the prior iteration of the Child Custody

Act, specifically 23 Pa.C.S.A. § 5314 (“Exception for adopted children)

(repealed). The text of Section 5314 was far more hostile to previously-held

custody rights than the current Section 5326. The former Section provided:

“Any visitation rights granted pursuant this section prior to the adoption of

the child shall be automatically terminated upon such adoption.” 23 Pa.C.S.A.

§ 5314 (emphasis added).

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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.” Id. at 919. “[A] biological

parent’s rights ‘do not extend to erasing a relationship between her [former]

partner and her child which she voluntarily created and actively fostered

simply because after the parties’ separation she regretted having done so.’”

Id. (Citing J.A.L. v. E.P.H., 682 A.2d 1314, 1322 (Pa. Super. 1996)).

Although T.B. did not involve the effect of an adoption under Section 5326,

its holding suggests: 1) Former Stepfather’s inability to adopt the Child has

no effect on his existing custody rights; and 2) Mother lacks the authority to

automatically extinguish the long-standing relationship she fostered between

the Child and Former Stepfather.

Here, the stepparent adoption does not impact Mother’s parental rights.

Because her rights remain unchanged, so do Former Stepfather’s in loco

parentis custody rights. In my view, Former Stepfather’s custody rights

survive the Current Stepfather’s adoption of the Child. Because Former

Stepfather retains the ability to exercise and enforce his custody rights, he is

not aggrieved by the adoption proceeding between Mother and Current

Stepfather. Thus, he lacks standing to intervene. 10

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10I do not believe Current Stepfather’s ascension to legal parenthood has any

impact on this analysis. For instance, had the petitioner in this case been a

grandparent, Current Stepfather would not have the authority to deny a

grandparent standing to seek custody under Section 5326. Thus, his opinion

(Footnote Continued Next Page)

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In summation of my second point, I conclude that it is proper to apply

standing principles to resolve Former Stepfather’s petition to intervene. In

doing so, I recognize that Former Stepfather has a legally enforceable interest.

Nonetheless, I conclude that this legally enforceable interest was not affected

by the Current Stepfather’s adoption, because his in loco parentis custody

rights survive a stepparent adoption. As such, Former Stepfather has no

standing to intervene, because he is not an aggrieved party. The orphans’

court properly denied his intervention petition.

III. Appointment of counsel

As a final housekeeping measure, I part ways with the Majority’s

decision to remand for the appointment of counsel and/or a guardian ad litem

for the Child for the adoption proceeding. I do not believe that such an

appointment is mandatory under the Adoption Act. In the context of an

adoption proceeding, the appointment is merely discretionary. Because

Former Stepfather did not raise this question during the proceedings below,

this Court lacks authority to address this issue sua sponte.

The Adoption Act provides:

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about whether Former Stepfather’s rights survive the adoption is of no

moment. Of course, Current Stepfather necessarily obtains parental rights as

a result of his adoption of the Child. Current Stepfather may utilize those

rights in custody litigation, where he may argue that it would not be in the

Child’s best interest for Former Stepfather to have custody. See 23 Pa.C.S.A.

§ 5328(a). In such an action, he would be entitled to the presumption

afforded to natural parents. See 23 Pa.C.S.A. § 5327(b). The only legal

impact of Current Stepfather’s adoption is that Current Stepfather becomes

the Child’s legal parent in place of Biological Father; Former Stepfather’s rights

are not impacted by this substitution.

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(a) Child.--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.

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. No attorney

or law firm shall represent both the child and the adopting

parent or parents.

23 Pa.C.S.A. § 2313(a) (emphasis added).

Supreme Court has explicitly addressed the difference between the

words of “shall” and “may” in Section 2313(a).

The language of Section 2313(a) at issue in this contested

[termination of parental rights (TPR)] case reads, in

pertinent part, “The court shall appoint counsel to represent

the child ....” “The word ‘shall’ by definition is mandatory

and it is generally applied as such.” Chanceford Aviation

Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors,

923 A.2d 1099, 1104 (2007)(citations omitted). When a

statute is unambiguous, “shall” must be construed as

mandatory. Id. Here, the use of “shall” is unambiguous and

hence, mandatory. The statutory language does not suggest

anything other than the general meaning of the word. By

contrast, the statute's second sentence uses the term “may”

in connection with “any other proceeding” (i.e., anything

other than a contested TPR) evidencing the fact that our

General Assembly knows well how to use non-mandatory

language when it wishes to do so. The lawmakers codified a

mandatory appointment of counsel for contested TPR cases,

and, in the very next sentence, codified a

discretionary provision for other proceedings. There is

no ambiguity in the statute. We may not manufacture one.”

(footnote omitted).

In re Adoption of L.B.M., 161 A.3d 172, 179-80 (Pa. 2017) (emphasis

added).

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Thus, Section 2313(a) only mandates the appointment of counsel during

the involuntary termination proceeding involving Biological Father. That

proceeding is now over. Only Current Stepfather’s adoption petition remains.

Although the orphans’ court had discretion to appoint counsel or a guardian

ad litem for the duration of the adoption proceedings – and I would encourage

the court to do so in future contested adoption proceedings – the court was

under no obligation to make such an appointment. I need not discuss the

Majority’s interpretation of our binding precedents, for they all concern the

first clause of Section 2313(a) (relating to termination proceedings) and thus

are readily distinguishable. Here, the Majority’s appointment is predicated

upon the second clause. As our Supreme Court already clarified, this second

clause is a “discretionary provision.” L.B.M., 161 A.3d at 179.

Moreover, we may not review the orphans’ court decision to not appoint

representation for the Child in this adoption proceeding. Former Stepfather

did not raise an objection to or submit any request regarding the Child’s lack

of representation. As a result, the issue is waived. See Pa.R.A.P. 302(a)

(providing for waiver of issues not first raised in the trial court); see also

Fillmore v. Hill, 665 A.2d 514, 515-516 (Pa. Super. 1995) (“[I]n order to

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

objection at the appropriate stage of the proceedings before the trial court.”)

(Citation omitted). Although our Supreme Court has clearly held that the

issue of appointment of counsel for a child in a contested termination case is

not waivable and may be raised sua sponte by an appellate court (see In re

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Adoption of K.M.G., 240 A.3d 1218 (Pa. 2020)), the same holding has not

been applied in an adoption case. As such, I conclude that the issue is waived

and that this Court lacks authority to raise it sua sponte.

In sum, I respectfully dissent for the following reasons: 1) Mother’s

withheld consent under 23 Pa.C.S.A. § 2711(a)(3) renders Former

Stepfather’s adoption petition not cognizable as a matter of law and a remand

is unnecessary because he cannot establish a prima facie case for adoption;

2) Former Stepfather lacks standing to intervene in this action, because his in

loco parentis custody rights are not affected by the Current Stepfather’s

adoption; 3) Section 2313(a) does not mandate the appointment of counsel

and/or a guardian ad litem in an adoption proceeding; we may not review the

lower court’s discretionary decision to not appoint representation, because

Former Stepfather failed to preserve the issue. Thus, I would affirm the

orphans’ court’s decision to dismiss Former Stepfather’s petitions and uphold

Current Stepfather’s adoption decree.

Judge Olson joins the dissenting opinion.

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