A.M.D. v. A.L.R, Aplts.

[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.

[J-27-2023] [MO: Brobson, J.] - 4

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…)

[J-27-2023] [MO: Brobson, J.] - 5

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).

[J-27-2023] [MO: Brobson, J.] - 6

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.

[J-27-2023] [MO: Brobson, J.] - 7

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.

[J-27-2023] [MO: Brobson, J.] - 8

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.”).

[J-27-2023] [MO: Brobson, J.] - 10

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.

[J-27-2023] [MO: Brobson, J.] - 12

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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