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In re A.M.

Superior Court of Pennsylvania

November 19, 2019


          Appeal from the Order Dated June 9, 2018 In the Court of Common Pleas of Allegheny County Family Court at No(s): CP-02-DP-0000934-2017



          PANELLA, P.J.

         Appellant, P.M.-T., contends the trial court erred in denying him[1]standing at the dependency proceedings of the child that was born during his same-sex marriage to J.M. ("Mother"). We agree, and therefore reverse.

         It is 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.

         Both 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.

         At the 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.[2] 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.

         A 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 9, 2018.

         At that 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.

         The 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.

         P.M.-T. 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.[3]

         At its 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).

         The 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).

         Here, 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 ...

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