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BABY GIRL D. (11/17/86)

decided: November 17, 1986.

IN RE BABY GIRL D., A MINOR, BABY GIRL E., A MINOR, BABY GIRL B., A MINOR, BABY BOY S., A MINOR, BABY GIRL S., A MINOR, BABY GIRL J.M.M., A MINOR, APPELLANTS


Appeal from the Order of the Superior Court of December 14, 1984, at Nos. 638, 639, 640, 641, 642, 643 Pittsburgh, 1983, vacating the Order of the Court of common pleas, Orphans' Court Division Allegheny County, dated April 28, 1983, at Nos. 282, 284, 339, 387, 370, 415 of 1982, and remanding same for further proceedings. Pa. Super. Ct. ; 488 A.2d 1169 (1984).

COUNSEL

Elaine V. Preston, Pittsburgh, for appellants.

Robert T. Crothers, Richard J. Amrhein, Peacock, Keller, Yohe, Day & Ecker, Washington, for Family Health Council of Western Pennsylvania, Inc.

William Wycoff, Thorp, Reed & Armstrong, Pittsburgh, for Children's Home of Pittsburgh.

James A. Esler, Asst. County Sol., Pittsburgh, for Children and Youth Services.

Samuel C. Totaro, Jr., Feasterville, for Golden Cradle.

Marianne P. Flood, Philadelphia, for Pennsylvania Committee for Adoption.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a dissenting opinion which is joined by Zappala and Papadakos, JJ.

Author: Flaherty

[ 512 Pa. Page 451]

OPINION OF THE COURT

We granted the petition for allowance of appeal of the minor adoptees, through their guardian ad litem, to address the question whether expenses for locating, preparing and arranging an adoption are properly charged to adoptive parents by an adoption agency, Family Infertility and Counseling Center of the Family Planning Counsel of Western Pennsylvania, and, if so, whether any limits on those expenses are properly imposed by the orphans' court division of the court of common pleas. The issue presented raises a question whether persons are profiting impermissibly from the placement of newborn infants in adoptive homes. The various courts of common pleas have taken differing positions as to allowable fees in adoption cases.

The question arose when investigators hired by the court under Orphans' Court Rule 15.5 questioned "unusual" fees charged to adoptors in cases involving the intermediary agency, Family Infertility and Counseling Center of the Family Planning Council of Western Pennsylvania. The questioned fees are for (1) counseling natural mothers; (2) counseling adoptors; (3) advertising expenses; (4) room

[ 512 Pa. Page 452]

    and board and travel expenses of the natural mother and certain of the mothers' medical expenses unrelated to the birth; (5) agency fees. The court, in limine, ordered the intermediary agency to reimburse adoptors for all amounts paid in connection with these enumerated expenses. Any fees paid by adoptive parents which might operate as consideration for the transfer of a child were disallowed. Superior Court granted the intermediary agency's petition for permission to appeal, but subsequently ruled that because individual findings of fact were not made in each case, the matter should be remanded to the trial court to augment its opinion. Because we deem the record adequate to address the broad legal question involved, we reverse the order of Superior Court, 339 Pa. Super. 624, 488 A.2d 1169, and consider the merits of the claims raised by the parties.*fn1

STANDING

Appeal is sought by the infant children, through their guardian ad litem,*fn2 and a question has been raised as to the guardian ad litem's standing to challenge the propriety of the expenses charged to adoptors by the adoption agency. The guardian argues that adoption fees charged to adoptors and paid for the benefit of natural mothers impermissibly affect both the decision of the natural mothers to voluntarily terminate parental rights and the decision of the agency as to which adoptors would provide the best homes for the infant children. The guardian questions whether these infants' placements are based upon financial rewards rather than a detached assessment of the relative merits of prospective adoptors. One judge of the orphans' court division below deemed expenses charged to these adoptive parents tantamount to "huckstering in human infants."

[ 512 Pa. Page 453]

The guardian ad litem's standing to question the propriety of the fees charged must be grounded upon the standing of the infant children themselves, see Sigel Appeal, 372 Pa. 527, 94 A.2d 761 (1953). It should by now be beyond question that it is every American's right not to be bought or sold. PA.CONST. Art. I, § 1 provides:

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.

Inherent in this provision must be the right of every individual not to be bought or sold. If individuals have the right not to be bought or sold, it necessarily follows that those individuals must have standing to raise that right in appropriate proceedings. Cf., Stapleton v. Dauphin Co. Child Care Serv., 228 Pa. Super. 371, 324 A.2d 562 (1974) (juvenile is a "party" to an action for custody under the Juvenile Act, Act of Dec. 6, 1972, P.L.1464, No. 333, 11 P.S. § 50-101 et seq., since repealed and replaced); Juvenile Act, Act of July 9, 1976, P.L.586, No. 142, 42 Pa.C.S.A. § 6337 (parties to proceedings under Juvenile Act, including children, are entitled to representation by legal counsel). The guardian ad litem was appointed by the court to represent the interests of the children in the proceedings sub judice. Thus, it follows that the guardian ad litem must have standing to challenge any procedure which amounts to a sale of the child whose interests she is appointed to protect.

REVIEW ON THE MERITS

The issue presented is whether the determination below, that impermissible and excessive fees were charged to adoptor parents by the adoption agency, was properly within the discretion of the judge of the orphans' court division. This case presents a pure question of law regarding the authority of the orphans' court division, as protector of the adoption process, to disallow certain fees charged to adoptor parents by the intermediary agency. We will find an abuse of discretion where the lower court's judgment is

[ 512 Pa. Page 454]

    manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, Commonwealth v. Lane, 492 Pa. 544, 549-550, 424 A.2d 1325, 1328 (1981), or without support in the record.

Traditionally, allowable expenses to adoptor parents have been limited to reasonable unreimbursed lying-in expenses, reasonable legal fees incident to the adoption proceedings and costs of the proceeding.*fn3 The reasons for the limitations on fees are obvious. Firstly, the limitations ensure that children will be placed in homes that promote their needs and welfare, 23 Pa.C.S.A. § 2902. Although financial considerations are certainly a factor, placement of children in adoptive homes should not rest solely on the wealth of the adoptors. Many homes with scarce financial resources are nevertheless adequate to provide the love, protection and support that children require. Secondly, the limitation upon expenses ensures that children are not bought and sold like commodities. As noted supra, sales of children contravene the public policy of this Commonwealth, and cannot be sanctioned by our courts. Thus, payments to or for natural parents by adoptor parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. See, Gorden v. Cutler, 324 ...


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