J-A08013-19

                                  2019 PA Super 344


    IN THE INTEREST OF: A.M., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: P.M.-T., NON-                   :
    BIOLOGICAL PARENT                          :
                                               :
                                               :
                                               :   No. 987 WDA 2018

                   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


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

OPINION BY PANELLA, P.J.:                           FILED NOVEMBER 19, 2019

       Appellant, P.M.-T., contends the trial court erred in denying him1

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
____________________________________________


1 P.M.-T. was born female but uses male pronouns and titles to refer to
himself. See Continuance Order, 8/22/17, at 1. We will, as the trial court did,
do the same.
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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

____________________________________________


2 P.M.-T. refers to the presumption as one of parentage, rather than paternity,
and the GAL refers to it as the marriage presumption. While we acknowledge
that the term presumption of paternity is not sufficiently inclusive to reflect
the reality of modern families, which include those with two same sex spouses,
we will refer to the presumption as one of paternity in order to be consistent
with the terminology thus far used by our Supreme Court.


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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.

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       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

____________________________________________


3 Only the GAL takes the position that the trial court properly denied standing
to P.M.-T on the basis that he and Mother did not have an intact marriage.
Notably, the GAL concedes that “the marriage presumption applies to same-
sex couples. . . .” The GAL further allows that if the evidence showed that
P.M.-T and Mother had an intact marriage, then the presumption would have
been available to P.M.-T. Brief of GAL, at 5.


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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

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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 the parentage of Child. See N.T., 10/11/17, at 7; N.T., 4/9/18,

at 6, 10. Given these circumstances, we conclude the trial court should have

applied the presumption of paternity to P.M.-T.



      The trial court found, however, that the presumption was not applicable

because P.M.-T. and Mother’s marriage was not intact. In support of that

conclusion, the trial court cited to the fact that P.M.-T. and Mother’s marriage

had been plagued by domestic violence and that their marriage had

“fluctuated.” The trial court highlighted Mother’s testimony at the dispositional

hearing on November 14 that she did not know the whereabouts of P.M.-T.

and that she essentially viewed her relationship with him as over. See Trial

Court Opinion at 10.

      It is readily apparent from the record that the marriage between P.M.-

T. and Mother is riddled with challenges and difficulties. Under our case law,

though, the existence of troubles in a marriage – even one as serious and

disturbing as domestic violence - does not mean that such a marriage is not

intact for purposes of determining the applicability of the presumption of

paternity. As the Supreme Court stated in Strauser:


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            [T]he marriage of Mother and Husband, like many, has
            encountered serious difficulties. It is in precisely this
            situation . . . that the presumption of paternity serves its
            purpose by allowing husband and wife, despite past
            mistakes, to strengthen and protect their family.

Id., at 1056.

       The GAL asserts that Strauser is not applicable to this case because the

spouses in Strauser never separated, whereas Mother testified at the

dispositional hearing on November 14th that she had not been able to locate

P.M.-T. for over a week and that she intended to separate from him. We

disagree.

       While it is true that Mother was uncertain of P.M.-T.’s whereabouts at

one point and expressed an intent to separate from him, there is no evidence

she followed through on that intention as the two appeared together at the

subsequent hearings on February 21 and April 9, 2018. The record reveals

that at that time, P.M.T. and Mother remained married, intended to remain

married, and were working, however imperfectly, to address the issues in their

family that needed to be remedied. See Permanency Review Order, 4/9/18,

at 3-4 (finding that “it is clear that Mother and [P.M.-T.] currently intend to

remain married” and that Mother and P.M.-T. were at least sporadically

attending various treatment programs, including those for substance abuse

and domestic violence).4
____________________________________________


4 The trial court acknowledged in its opinion that Mother and P.M.-T. “resumed
their relationship” but noted that they lacked housing and had not successfully



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       We are, of course, mindful that the question before us is the threshold

one of whether P.M.-T. has standing to participate as a party in the

dependency proceedings of Child. Undoubtedly, the issues in P.M.-T. and

Mother’s marriage cited by the trial court are relevant to the separate and

distinct matters related to Child’s adjudication and placement. See In re J.S.,

980 A.2d 117, 121 (Pa. Super. 2009) (standing is a threshold issue only and

does not address the merits of the separate and distinct underlying issues of

adjudication or the propriety of permanency goal in dependency hearings).

They cannot, however, be relied upon to support the trial court’s conclusion

that the presumption of paternity did not afford P.M.-T. standing at Child’s

dependency proceedings because his existing marriage to Mother was not

intact. As a result, we agree with P.M.-T. that the trial court erred by denying

him standing. See J.L. v. A.L. and K.L., 205 A.3d 347, 353 (Pa. Super. 2019)

(trial court’s order regarding paternity is reviewed for abuse of discretion or

error of law).5
____________________________________________


reestablished a household together. See Trial Court Opinion at 10-11. We find
that, under Strauser, a married couple’s housing instability is not a proper
basis for finding that the marriage itself is not intact for purposes of the
presumption of paternity. See 726 A.2d at 1056.

5 Mother essentially argues that the trial court erred by arriving at its
conclusion that her marriage to P.M.-T. was not intact without the benefit of
hearing testimony on that issue from the spouse who was found to lack
standing. In a similar vein, OCYF argues that the trial court erred by limiting
the standing proceeding to legal argument, and improperly used information
learned from the cases of Mother’s two older children to substantiate its
conclusion that the marriage between Mother and P.M.-T. was not intact.



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       In light of our conclusion that the marriage of Mother and P.M.-T. was

intact for purposes of the presumption of paternity, we must address the

broader issue of whether that presumption applies to the situation at hand

because it involves a same-sex marriage. All parties contend that the

presumption is applicable to same-sex spouses, and we agree.

       When a child is born while two people are married, and the question of

parentage arises while that marriage is intact, the presumption of paternity is

meant to apply to the person in the marriage who was not the one to give

birth to the child. That is the exact situation here.

       Our case law plainly states that the policy underlying the presumption

of paternity is to preserve marriages. Same-sex marriages are legal in

Pennsylvania and must be “afforded the same rights and protections as

opposite-sex” marriages. In Re Estate of Carter, 159 A.3d 970, 977 (Pa.

Super. 2017). We therefore have no difficulty in holding that the presumption

of paternity is equally as applicable to same-sex marriages as it is to opposite-

sex marriages.6
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Given that we have already determined that the trial court erred by finding
that the marriage was not intact, we do not need to reach the merits of these
claims. We do note, however, that the record reflects that the court handled
the standing issue with sensitivity and showed a genuine intent to understand
the law of parentage in the context of a family construct that had not yet been
before the court.

6None of the parties assert that our Supreme Court’s decision in C.G. v, J.H.,
193 A.3d 891 (Pa. 2018) is in any way controlling, or even applicable, to the
question presented by this matter. However, the Court in C.G. considered the



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       In doing so, we join other states that have held similarly. See, e.g., LC

v. MG and Child Support Agency, 143 Hawai’i 302, 314, 430 P.3d 400, 412

(2018) (wife was presumed to be a parent of child born during spouses’ same-

sex marriage pursuant to statutory marital presumption); McLaughlin v.

Jones, 243 Ariz. 29, 37, 401 P.3d 492, 500 (2017) (extending statutory

marital paternity presumption to same-sex spouses); Wendy G-M v. Erin G-

M, 45 Misc.3d 574, 596, 985 N.Y.S.2d 845, 861 (Sup.Ct. Monroe County

2014) (under New York common law, female spouse of biological mother was

presumed to be a parent to child born during that marriage).

       In sum, then, we hold that the trial court erred in finding that P.M.-T.

and Mother’s marriage was not intact, and in turn, erred by not applying the

presumption of paternity to P.M.-T. so that he had standing as a legal parent

to participate in the dependency proceedings of Child.

____________________________________________


issue of whether an unmarried former partner had standing to seek custody
as a “parent” of a child born during her same-sex relationship with the
biological mother. In holding that she did not, the Court opined that the former
partner was not a “parent” because she had no biological connection to the
child, had not officially adopted the child and had not entered into the very
specific type of contract that Pennsylvania courts have recognized as affording
legal parentage by way of contract. Id., at 903-04. The Court noted that the
“presumption attendant to marriage” was also a way to establish parentage
in Pennsylvania, id., at 906, but that such a presumption was not applicable
in C.G. because the parties had never been married. The Court found that the
issue of whether their out-of-state commitment ceremony was considered a
marriage was beyond the scope of the legal issue presented and the facts of
that case. Id., at 899 n.5. In stark contrast to the situation in C.G., there is
no dispute here that P.M.-T. and Mother were legally married and that Child
was born during that marriage.



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       P.M.-T. also claims that the trial court erred by allowing the GAL to

participate as a party in the proceedings regarding P.M.-T.’s standing as a

parent. This claim is without merit.

       The Juvenile Act requires a GAL to be appointed in dependency

proceedings to represent the legal interests and the best interest of the child

at every stage of the proceedings. See 42 Pa.C.S.A. § 6311(b).7 In making

his argument here, P.M.-T. fails to point to any statute or decision in this

Commonwealth that makes any exceptions to this clear mandate, much less

one that specifically precludes the GAL from participating when the issue of

an alleged parent’s standing arises during a child’s dependency proceedings.

       P.M.-T. simply fails to establish, and we do not discern, any error in the

trial court’s decision to allow the GAL to participate in the hearings related to

P.M.-T.’s standing at Child’s dependency proceedings, every stage of which

Child is entitled to representation. See 42 Pa. C.S. § 6311(b).

       Order reversed.




____________________________________________


7 42 Pa.C.S.A. § 6311(b)(9), stating that a GAL does not have a conflict of
interest where a child’s best interests and legal interests diverge, was
suspended by our Supreme Court. See In re Adoption of L.B.M., 161 A.3d
172, 175 n.4 (Pa. 2017). Given Child’s young age, there is no need to address
whether the trial court should have appointed separate counsel to represent
Child’s legal interests. See In re T.S., 192 A.3d 1080, 1089-92 (Pa. 2018).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2019




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