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K.W. v. S.L.

Superior Court of Pennsylvania

March 6, 2017

K.W. Appellant
v.
S.L. & M.L.
v.
G.G.

         Appeal from the Order Entered August 8, 2016 in the Court of Common Pleas of York County Civil Division at No: 2015-FC-002204-03

          BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

          OPINION

          STABILE, J.

         K.W. ("Father") appeals from the order entered August 8, 2016, in the Court of Common Pleas of York County, which denied his preliminary objections and granted S.L. and M.L. ("Appellees") in loco parentis standing to pursue custody of Father's minor daughter, M.L. ("Child"). After careful review, we vacate and remand for further proceedings consistent with this opinion.[1]

         Child was born in August 2015 to Father and G.G. ("Mother"). Father and Mother dated briefly from October 2014 until approximately December 12, 2014. N.T., 8/1/16, at 7. While the details are not entirely clear from the record, it appears that Mother discovered that she was pregnant with Child shortly after her separation from Father. Id. at 38. However, Mother did not directly inform Father of her pregnancy. Id. at 37-40. In March 2015, Mother contacted Bethany Christian Services ("BCS") in order to place Child for adoption. Id. at 43. BCS placed Child in the care of Appellees two days after her birth. Id. at 71.

         Meanwhile, BCS attempted to locate Father. While Mother provided BCS Father's name, she could not initially provide any other contact information. Id. at 43. Mother later assisted BCS in identifying Father's Facebook profile. Id. at 44. BCS first attempted to contact Father on July 29, 2015, by sending him a Facebook message. Id. at 43. BCS also sent friend requests to Father on July 30, 2015, and August 14, 2015. Id. at 46. Father did not respond to the message sent by BCS, nor did he accept the friend requests.[2] Id. at 46-47. BCS made several other attempts at contacting Father, including calling the employer listed on Father's Facebook profile, without success. Id. at 48-49. Finally, with Mother's assistance, BCS located several of Father's last known addresses. Id. at 49, 64. BCS sent letters to Father on September 16, 2015. Id. at 64. Father received these letters on September 19, 2015, and contacted BCS to set up a meeting. Id. at 11-12. On approximately October 14, 2015, Father informed BCS that he did not want Child to be adopted. Id. at 58.

         The subsequent procedural history of this matter is convoluted. On October 30, 2015, Father filed a custody complaint in Centre County, naming Mother as the only defendant.[3] Father also filed an emergency petition on November 6, 2015, in which he requested that BCS be ordered to provide him with the current whereabouts of Child, among other things. The Centre County trial court issued an order granting Father's petition that same day. On November 17, 2015, the Centre County court entered an order transferring Father's case to Lycoming County, as well as an interim custody order awarding primary physical custody of Child to Appellees, and awarding partial physical custody to Father as agreed upon by the parties.

         On November 25, 2015, Appellees filed a custody complaint in York County. That same day, Appellees filed a notice of appeal from the Centre County trial court's order transferring Father's case to Lycoming County. In their concise statement of errors complained of on appeal, Appellees alleged that the Centre County court erred by failing to join them as necessary parties to the custody action, and by failing to transfer the case to York County, on the basis that York County is Child's "home county" pursuant to the Pennsylvania Rules of Civil Procedure. By order entered December 17, 2015, the Centre County court rescinded its prior order transferring the case to Lycoming County, and transferred the case to York County instead. Appellees then discontinued their appeal.

         On February 26, 2016, Father filed preliminary objections to Appellees' custody complaint.[4] In his preliminary objections, Father argued that Appellees do not have standing to pursue custody of Child. Specifically, Father argued that Appellees do not stand in loco parentis to Child, because he did not consent to Child being placed with Appellees. Appellees filed an answer to Father's preliminary objections on March 16, 2016. On March 18, 2016, the York County trial court entered an order dismissing Appellees' complaint "without prejudice to either party to refile and request another conciliation conference, " on the basis that the parties' conciliation conference was continued and then not rescheduled within the time required by local practice and procedure. Order, 3/18/16, at 2. On March 21, 2016, Father filed a praecipe to schedule a new conciliation conference, which the court granted.

         On April 4, 2016, Father filed an additional custody complaint in York County.[5] The trial court entered an interim custody order on April 12, 2016, maintaining primary physical custody with Appellees, awarding Father partial physical custody during certain weekends, and awarding shared legal custody to all parties. On May 23, 2016, Father filed a praecipe to list his preliminary objections for one-judge disposition. On August 1, 2016, Appellees filed a motion to strike Father's praecipe for one-judge disposition, or, in the alternative, preliminary objections to Father's preliminary objections.

         The trial court held a hearing to address Father's preliminary objections on August 1, 2016. Following the hearing, on August 8, 2016, the court issued an order and opinion denying Father's preliminary objections, and granting Appellees in loco parentis standing.[6] Father timely filed a notice of appeal on August 19, 2016, along with a concise statement of errors complained of on appeal. On September 2, 2016, the court issued a supplemental opinion, in which it indicated that the reasons for its decision could be found in the opinion accompanying the August 8, 2016 order, and that no additional explanation would be necessary.

         Before reaching the merits of Father's appeal, we must first consider whether the August 8, 2016 order was properly appealable. "'[S]ince we lack jurisdiction over an unappealable order it is incumbent on us to determine, sua sponte when necessary, whether the appeal is taken from an appealable order.'" Gunn v. Automobile Ins. Co. of Hartford, Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)). It is well-settled that, "[a]n appeal lies only from a final order, unless permitted by rule or statute." Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). Generally, a final order is one that disposes of all claims and all parties. See Pa.R.A.P. 341(b).

         Father concedes that the August 8, 2016 order is not a final order pursuant to Pa.R.A.P. 341(b). Father's Brief at 21. Instead, Father insists that the order is appealable pursuant to the collateral order doctrine. See Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a collateral order of a lower court). "A collateral order is an order 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 case, the claim will be irreparably lost." Pa.R.A.P. 313(b).

         Father argues that the August 8, 2016 order meets the requirements of the collateral order doctrine because it "is collateral to the main issue of child custody and . . . because it impacts the number of parties who will participate in the action, and it cannot be delayed until a final order is issued without being lost." Father's Brief at 22. In support of this position, Father directs our attention to K.C. v. L.A., 128 A.3d 774 (Pa. 2015). Id. Father contends "there is no meaningful difference" between K.C. and this case.[7]Id. at 23.

         In K.C., our Supreme Court held that an order denying intervention in a child custody case due to a lack of standing meets both the first and second prongs of the collateral order doctrine, as standing is an issue separable from, and collateral to, the main cause of action in a child custody case, and because the right to intervene in custody cases implicates Pennsylvania's "paramount interest in the welfare of children and, as a result, in identifying the parties who may participate in child custody proceedings[.]" K.C., 128 A.3d at 779-80. We agree with Father that the reasoning employed in K.C. applies with equal force here.

         However, we find that K.C. is distinguishable with respect to the third prong of the collateral order doctrine. In that case, the appellants argued that their claim would be irreparably lost pursuant to In Re Barnes Foundation, 871 A.2d 792 (Pa. 2005), in which our Supreme Court held that an order denying intervention must be appealed within thirty days. Id. at 778. Our Supreme Court agreed, reasoning that the appellants would be unable to appeal the order denying their petition to intervene if they waited until the completion of the underlying custody proceedings. Id. at 780. If the appellants attempted to appeal from the order denying intervention after the entry of a final custody order, their appeal would be untimely pursuant to Barnes. Id. Further, the appellants would not be permitted to appeal from the final custody order itself, as the fact that they were denied intervention meant that they were not parties to the custody action. Id. Here, in contrast, Father has not been denied intervenor status. Barnes does not apply, and Father remains a party to the underlying custody action.

         Nonetheless, we conclude that Father's claim will be irreparably lost if we postpone review until the entry of a final order. Standing in child custody cases is a matter of constitutional significance. As our Supreme Court has emphasized, "the right to make decisions concerning the care, custody, and control of one's children is one of the oldest fundamental rights protected by the Due Process Clause" of the Fourteenth Amendment. Hiller v. Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000)). Mindful of this fundamental right, our law presumes that parents are fit and make ...


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