S.L. & M.L.
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.
("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
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.
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. 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.
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. 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.
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.
February 26, 2016, Father filed preliminary objections to
Appellees' custody complaint. 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
April 4, 2016, Father filed an additional custody complaint
in York County. 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
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. 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.
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).
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).
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.Id. at 23.
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.
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.
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 ...