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E.T.S v. S.L.H

September 28, 2012

E.T.S.,
APPELLANT
v.
S.L.H., APPELLEE



Appeal from the Order Entered February 29, 2012 In the Court of Common Pleas of Adams County Orphans' Court at No(s): 11-S-1162

The opinion of the court was delivered by: Stevens, P.J.

J-A23014-12

BEFORE: STEVENS, P.J., BENDER, J., and GANTMAN, J.

OPINION BY STEVENS, P.J.

E.T.S. (hereinafter "Boyfriend") appeals from the Order entered on February 29, 2012, in the Court of Common Pleas of Adams County sustaining the preliminary objections of S.L.H. (hereinafter "Adoptive Mother"), the adoptive mother of K.H. (born in May of 2006) and K.M.H. (born in August of 2007) (hereinafter "the Children"), and holding that Boyfriend has no standing to seek physical or legal custody of the Children, pursuant to 23 Pa.C.S.A. § 5326. Upon our review of the record, we affirm. The parties do not dispute the facts relevant to our disposition of this case. In 2003, Boyfriend and Adoptive Mother began living together. Adoptive Mother is the biological maternal great-aunt of the Children, and in May of 2009, Adoptive Mother and Great-Grandmother began exercising shared physical and legal custody of the Children. In October of 2010, the biological mother of the Children executed her consent to the adoption of the Children. In August of 2010, Adoptive Mother filed a petition for the involuntary termination of biological father's parental rights, which the trial court granted in November of 2010.

On February 14, 2011, Boyfriend proposed marriage to Adoptive Mother, which she rejected. Shortly thereafter, Boyfriend moved out of Adoptive Mother's home. On April 18, 2011, the trial court terminated biological mother's parental rights pursuant to her consent to the adoption of the Children. On May 25, 2011, the court awarded custody of the Children to Adoptive Mother.

On July 29, 2011, Boyfriend filed a custody complaint seeking shared physical custody and shared legal custody of the Children. Boyfriend avers in loco parentis standing regarding the Children during his time as Adoptive Mother's live-in boyfriend. On August 16, 2011, Adoptive Mother filed preliminary objections to Boyfriend's complaint for custody asserting that Boyfriend had no relationship to the Children, never assumed the obligations of parenting, and lacked standing to seek custody of the Children. Adoptive Mother's Preliminary Objections, filed 8/16/11. The trial court noted that, "[i]n briefs to this [c]court, both parties allege facts tending to prove or disprove Boyfriend's in loco parentis status. The parties agree that Boyfriend has had no contact with the [C]hildren post-adoption." Trial Court Opinion, 2/29/12, at 7.*fn1

On February 29, 2012, the trial court entered its Order sustaining Adoptive Mother's preliminary objections and holding that any rights Boyfriend may have established prior to the adoption of the Children by virtue of his alleged in loco parentis relationship with the Children were terminated upon the adoption of the Children. On March 29, 2012, Boyfriend timely filed his notice of appeal and simultaneously filed his concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b).

In his brief, Boyfriend presents four questions for our review:

A. Did the Trial Court err in holding Appellant lacked standing to seek custody of the Children?

B. Did the Trial Court err in holding that the common law doctrine of in loco parentis is abrogated by Title 23 Chapter 53 of the Pennsylvania Code?

C. Did the Trial Court err in its application of 23 Pa.C.S. § 5326 by applying the provisions of §5326 to all individuals granted standing to seek custody under Pa.C.S. [sic] §5324?

D. Did the Trial Court err in finding the language of 23 Pa.C.S. ยง5326 to be free of ambiguity, and by failing to apply the principles of statutory ...


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