IN THE INTEREST OF: A.M., A MINOR APPEAL OF: P.M.-T., NON-BIOLOGICAL PARENT
from the Order Dated June 9, 2018 In the Court of Common
Pleas of Allegheny County Family Court at No(s):
BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.
P.M.-T., contends the trial court erred in denying
himstanding at the dependency proceedings of
the child that was born during his same-sex marriage to J.M.
("Mother"). We agree, and therefore reverse.
undisputed that P.M.-T. and Mother were legally married in
Allegheny County on February 20, 2015. At that time, Mother
had two children from a previous relationship who were
adjudicated dependent and placed with their maternal
grandmother on January 10, 2017. Mother gave birth to A.M.
("Child") on July 21, 2017. Both P.M.-T. and Mother
stated that P.M.-T. was named as the father on the birth
certificate. After Child was born, the Allegheny County
Office of Children, Youth and Families ("OCYF")
obtained an Emergency Protective Custody Order for Child and
she was placed, along with her half siblings, with her
maternal grandmother. A guardian ad litem
("GAL") was appointed for Child and an adjudicatory
hearing was scheduled for August 22, 2017.
P.M.-T. and Mother were at the adjudicatory hearing on August
22. Mother raised the issue of P.M.-T.'s parental status,
informing the court that P.M.-T. was her same-sex spouse, was
listed as the father on Child's birth certificate and
should be regarded as Child's legal parent. See
Continuance Order, 8/22/17, at 1. The court continued the
adjudicatory hearing, but directed the parties to address
P.M.-T.'s parental status, and therefore his standing, at
the continued hearing scheduled for October 11, 2017.
continued adjudicatory hearing, P.M.-T. requested that he be
recognized as Child's father and be granted standing.
See N.T. Adjudicatory Hearing, 10/11/17, at 8-9. The
court heard initial arguments on P.M.-T.'s standing;
specifically, whether he was presumed to be Child's
parent pursuant to the presumption of
paternity. Ultimately, the court deferred its
decision on P.M.-T.'s standing and appointed counsel to
assist P.M.-T. with presenting argument on the matter. The
court also adjudicated Child dependent as to Mother, based on
Mother's stipulation that Child should not be in her care
until she made further progress on her reunification goals,
which included domestic violence services. See
Dispositional Order, 11/14/17, at 2-3; N.T. Adjudicatory
Hearing, 10/11/18, at 16.
dispositional hearing was held on November 14, 2017. P.M.-T.
was not present at the hearing, and Mother explained that
P.M.-T. had been missing for over a week and that she
intended to separate from him because the relationship was
hindering her progress toward regaining custody of her
children. See N.T. Dispositional Hearing, 11/14/17,
at 5-6, 52-53. Given P.M.-T.'s absence, the court did not
consider the standing issue, but proceeded to the
dispositional hearing and ordered that Child remain in her
placement with her grandmother. The court then scheduled a
permanency review hearing for February 21, 2018, which
P.M.-T. attended, but the hearing was continued until April
hearing on April 9, which P.M.-T. also attended, the parties
presented legal argument on whether the presumption of
paternity applied to a non-biological spouse, such as
P.M.-T., whose same-sex spouse gave birth to a child during
their marriage. Counsel for P.M.-T. made clear this was an
issue of first impression in Pennsylvania. See N.T.
Permanency Review Hearing, 4/9/18, at 7. Although the trial
court did not rule on the standing issue at the hearing,
instead taking the matter under advisement, it did find that
Mother and P.M.-T. were married, intended to remain married,
and intended to reestablish a household together.
See Permanency Review Order, 4/9/18, at 4.
trial court issued its order denying P.M.-T.'s request
for standing on June 9, 2018. According to the court, the
presumption of paternity was not applicable to this case
because P.M.-T. and Mother's marriage, irrespective of
whether it was a same-sex or opposite-sex marriage, was not
intact. P.M.-T. appealed to this Court.
argues, as do Mother and OCYS, that the trial court erred by
not granting P.M.-T. standing because he is the legal parent
of Child under the presumption of paternity.
core, the question before this Court is one of standing.
Standing is a question of law and therefore, the standard of
review is de novo and the scope of review is
plenary. See C.G. v. J.H., 193 A.3d 891, 898 (Pa.
2018). Under the Juvenile Act, only a "party" has
the right to participate, introduce evidence, and present
arguments in dependency proceedings. See In re L.C.,
II, 900 A.2d 378, 381 (Pa. Super. 2006). Parents of the
child whose dependency status is at issue are considered
"parties" and therefore have standing at dependency
proceedings. See id. This is only logical given that
the court has the ability to remove a dependent child from
the custody of his parents, see id., and that the
interest of parents in "the care, custody and control of
their children is perhaps the oldest fundamental liberty
interest recognized by [the Unites States Supreme]
Court." Troxel v. Granville, 530 U.S. 57, 65,
120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).
presumption of paternity, i.e., the presumption that
a child conceived or born during a marriage is a child of the
marriage, has been described by our Supreme Court as
"one of the strongest presumptions known to the
law." Vargo v. Schwartz, 940 A.2d 459, 463 (Pa.
Super. 2007). The doctrine presumes that if a woman gives
birth during her marriage, her spouse is the other parent to
that child. The policy underlying the presumption of
paternity is the preservation of marriages, and the
presumption will only be applied where that policy is
advanced by its application. See id. "When
there is no longer an intact family or a marriage to
preserve, then the presumption of paternity is not
applicable." Id.; see also K.E.M. v. P.C.S., 38
A.3d 798, 806-07 (Pa. 2012) (presumption of paternity only
applicable to situations in which underlying policies will be
advanced, namely where there is an intact marriage to
protect). In cases where the marriage is intact, however, the
presumption is applicable and irrebuttable. See Strauser
v. Stahr, 726 A.2d 1052, 1055-56 (Pa. 1999).
P.M.-T. and Mother were legally married when Child was
conceived as well as when she was born. See Brief of
GAL, at 3-4 (conceding that Mother and P.M.-T. were married
for over two years before Child's birth). According to
both P.M.-T. and Mother, P.M.-T. is listed as the father on
Child's birth certificate, and P.M.-T. informed the trial
court that he wanted to be recognized as the father and
wanted to participate in Child's dependency proceedings.
See Dispositional Order, 11/14/17, at 2; N.T.,
10/11/17, at 8. P.M.-T. and Mother remained married and
intended to remain married at the time P.M.-T.'s party
status was being challenged. There is no third party
challenge to ...