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ANNA FAUST v. JOSEPH L. MESSINGER (08/23/85)

filed: August 23, 1985.

ANNA FAUST, APPELLANT,
v.
JOSEPH L. MESSINGER, THOMAS SNYDER AND R. BENAY SNYDER



Appeal from the Order of December 6, 1984, in the Court of Common Pleas of Northampton County, Civil Division, at Nos. 1984-C-1616 and 1982-1149.

COUNSEL

Dwight L. Danser, Easton, for appellant.

Joel M. Scheer, Easton, for appellees.

Cavanaugh, Cirillo and Hester, JJ.

Author: Hester

[ 345 Pa. Super. Page 157]

Appellant, a grandmother, has appealed from an order which denied her visitation rights with her grandson following his adoption. Said order also refused to reopen the proceeding which had resulted in his adoption by appellees. Her claims are based on: 1) the fact that the boy's father killed his wife (the boy's mother and the appellant's daughter), 2) the allegedly intentional and malicious acts of appellees in withholding from her the child's whereabouts as well as the pendency of the adoption proceeding, 3) the Custody and Grandparents Visitation Act [CGVA], 23 P.S. § 1001 et seq., which permits a grandparent to seek visitation of a grandchild under certain circumstances applicable to appellant, and 4) her lack of notice of the adoption proceeding which she claims violated procedural due process requirements. Despite these factors, we affirm.

[ 345 Pa. Super. Page 158]

    holds that procedural due process entitles a person whose rights may be affected by an action to be heard, and to enjoy that right, he must be notified of the proceedings. In addition, when a legally protected interest is created by statute, the provisions of the statute must be examined to determine whether or not due process applies. Ingram v. O'Bannon, 534 F.Supp. 385 (E.D.Pa. 1982). It is axiomatic that the due process clause does not create the right but protects the right created by statute or other legal basis.

In this case, appellant does not rely on a right created by the Adoption Act, 23 Pa. § 2101 et seq., conceding that as a grandparent she was not entitled to notice under the provisions of the Adoption Act. Her claimed entitlement comes from the CGVA, which permits a grandparent to seek visitation but terminates grandparental visitation rights upon adoption. Two reasons compel us to deny the appellant's due process argument.

First, it amounts to a claim that the CGVA is unconstitutional for failing to establish notice provisions which satisfy due process requirements. Such a claim is barred because it does not comply with the provisions of Pa.R.Civ.P. 235 and Pa.R.A.P. 521, requiring notice to the attorney general of a constitutional challenge to a statute. See Matter of Adoption of Christopher P., 480 Pa. 79, 90, 389 A.2d 94, 100 (1978).

Second, the entitlement claimed by appellant does not amount to one which must be protected by the due process clause. It is an entitlement only to seek visitation which will be granted or denied as the best interests of the child dictate, 23 P.S. §§ 1012, 1014. Prior to his adoption, while the statute entitled her to do so, appellant did not institute an action for visitation of her grandson, nor does she explain her failure to do so.*fn1

Even if she had obtained a visitation order prior to the adoption proceeding, however, ...


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