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filed: July 17, 1989.


Appeal from the order entered May 2, 1988, in the Court of Common Pleas, Orphans' Court Division, of Lancaster County, No. 221 1/2 of 1987.


Elizabeth A. Hambrick-Stowe, Lancaster, for appellant.

William C. Crosswell, Lancaster, for Family & Children Services, Participating Party.

Rowley, Wieand and Beck, JJ. Wieand, J., files a dissenting opinion.

Author: Rowley

[ 386 Pa. Super. Page 302]

This is an appeal from an order sustaining preliminary objections and dismissing a complaint for custody and a petition to intervene in and stay adoption proceedings. At issue on this appeal are the rights of proposed adoptees when someone other than the proposed adoptive parents brings to the court's attention before the adoption is decreed that the best interests of the proposed adoptees may not lie in adoption by the proposed adoptive parents. By

[ 386 Pa. Super. Page 303]

    refusing to permit appellants to intervene in the adoption proceedings and by refusing to give any meaningful consideration to their petition for custody, the trial court denied the proposed adoptees their right to have their "best interests" determined upon a consideration of all relevant facts. We reverse and remand for further proceedings.

The factual background of this case as averred in the Complaint for Custody and the Petition to Intervene and Stay, as well as in the affidavit attached thereto, is as follows. The proposed adoptive children, Melanie Hess and Matthew Hess, whose custody is in issue in the present case, are a sister and brother who at the time of the filing of the complaint for custody in this case were five and four years old respectively. They also have four other siblings who are not involved in the present proceedings.

During their lives, Melanie and Matthew, the natural parents of Melanie and Matthew, as well as the other four siblings of Melanie and Matthew, lived with their grandparents, the appellants herein, for various periods of time because the natural parents had difficulty in obtaining suitable housing for themselves and their six children. During much of this time, the grandmother was the primary caretaker of all of the children.

In June of 1985, the natural parents advised the grandparents that they had found suitable housing, and therefore removed all six children from the grandparents' home. The grandparents later learned that the six children had been placed with Lancaster County Children and Youth Social Service Agency (Children and Youth). The grandparents then worked with Children and Youth, and were granted custody of three of the children (not including the two involved in this case) in October 1985. So long as the other three children remained in custody of Children and Youth, the grandparents took the three children in their custody to visit with their siblings regularly.

In July 1986, Melanie and Matthew were returned to their natural parents, and in December 1987, the sixth child was placed in custody of the grandparents. In the spring of

[ 386 Pa. Super. Page 3041987]

, Melanie and Matthew were again taken from the natural parents and placed in the custody of Children and Youth. Upon learning of this, the grandparents contacted Children and Youth and obtained physical custody of Melanie and Matthew. One day shortly thereafter, the natural father of the children said that he was going to take Melanie and Matthew out for breakfast. Instead, he took them to Children and Family Services of Lancaster County (the Agency). Upon learning this fact, the grandparents contacted the Agency and advised it of their willingness and ability to care for Melanie and Matthew, "as a family together with their sisters," but the Agency refused even to discuss the children with the grandparents and the children were never returned to them. Instead, the natural parents voluntarily relinquished their parental rights to Melanie and Matthew. A decree terminating their parental rights was entered pursuant to 23 Pa.C.S. § 2521, custody of Melanie and Matthew was given to the Agency, and the Agency placed the children with proposed adoptive parents who filed a petition for adoption.

When the grandparents, who by this time had complete legal and physical custody of the siblings of Melanie and Matthew, learned that a notice of intent to adopt had been filed, they filed the instant Complaint for Custody and Petition to Intervene and Stay the adoption proceedings. The Agency filed preliminary objections in the nature of a demurrer and alleged that the grandparents lacked the capacity to sue. In sustaining the preliminary objections and ordering the complaint and petition to be dismissed with prejudice, the trial court held that the grandparents are not parties in interest in the adoption proceedings, and therefore have no right to appear during the pendency of the adoption proceedings and demand custody or visitation. The grandparents have appealed from this order.*fn1

While it is clear from the trial court's disposition of the custody complaint and the petition to intervene in and stay the adoption proceedings that it perceived the critical issue

[ 386 Pa. Super. Page 305]

    in this case to be the rights of the grandparents, and while the Agency follows this analysis in the present appeal, the dispositive factor in this case must be the rights of the children whose BEST interests the court must determine in the adoption proceeding. As this Court stated in Matter of Adoption of Sturgeon, 300 Pa. Super. 92, 107, 445 A.2d 1314, 1321 (1982):

The law as to adoption in Pennsylvania is well-settled: a child may be adopted if its parents have had their parental rights terminated, either by consent or involuntarily. Once this prior adjudication has been made and the rights of the natural parents are no more, the best interest of the child becomes the criterion by which a court must be guided.

(Emphasis in original). Applying this standard to the present case, we conclude that it was an abuse of discretion not to grant the Petition to Intervene and Stay and to dismiss summarily the Complaint for Custody without a hearing on the basis that the grandparents have no right to file such a complaint or petition once a notice of intent to adopt has been filed.

The trial court's dismissal of the Complaint for Custody as well as the Petition to Intervene and Stay was based on the conclusion that appellants had no right to intervene in the adoption proceedings or interfere with them, by filing a separate Complaint for Custody, because the rights of the children's parents had been terminated. Intervention by a party shall be permitted however, if "such person could have joined as an original party in the action or could have been joined therein." Pa.R.C.P. 2327(3). Our scope of review of an order granting or denying a petition to intervene is limited, and we will reverse the trial court's decision only where there has been a manifest abuse of discretion. Wilson v. State Farm Mutual Automobile Ins. Co., 512 Pa. 486, 517 A.2d 944 (1986). Therefore, in order to decide whether the trial court's order dismissing the Complaint for Custody and the Petition to Intervene and Stay was proper, we must determine whether the trial court abused its discretion

[ 386 Pa. Super. Page 306]

    in deciding that appellants could not, at a minimum, have been joined in the adoption proceedings.

The Adoption Act makes clear that the natural parents whose rights have been terminated may not participate in the adoption proceedings and do not need to receive notice of the adoption proceedings. 23 Pa.C.S. § 2521(a). However, the Adoption Act does not preclude other relatives of the child from participating in adoption proceedings after the rights of the child's parents have been terminated and before a final decree of adoption has been entered. Nor does it preclude other relatives from seeking to enforce rights they may have in connection with the child. On the contrary, a statute expressly provides that biological, or non-biological, grandparents continue to have the right to seek partial custody and visitation with a grandchild in certain circumstances after the parents' rights have been terminated and until the child is adopted. See 23 Pa.C.S. §§ 5311-5314. The Adoption Act also not only does not prohibit biological relatives from filing a petition for adoption after parental rights have been terminated, but expressly excuses certain biological relatives, including grandparents, from the requirement of filing a "Report of Intention to Adopt" when they have custody of the biologically-related child whom they want to adopt. 23 Pa.C.S. § 2531(c).

That a decree terminating parental rights affects only the rights of the parents of a child, and not other relations of the child, is especially apparent when one considers that in many instances where the natural parents' rights have been terminated or where the natural parents have died, it is relations of the child who obtain custody of the child and/or adopt the child. Thus, while the Adoption Act completely and irrevocably severs any legal relationship between the parent and child, the Act does not necessarily sever the relationship between the child and relatives of the child other than the child's natural parents.

In addition to the absence of any prohibition in the Adoption Act of relations, ...

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