J-A09030-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ADOPTION OF M.R.D.          :            IN THE SUPERIOR COURT OF
                                       :                 PENNSYLVANIA
                                       :
    APPEAL OF: R.D.D., SR., AND M.K.D. :
                                       :
                                       :
                                       :
                                       :
                                       :            No. 1631 WDA 2019

                Appeal from the Order Entered October 8, 2019
      In the Court of Common Pleas of Allegheny County Orphans’ Court at
                              No(s): A-19-036


BEFORE:      SHOGAN, J., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY MURRAY, J.:                                    FILED JUNE 23, 2020

        Appellants, R.D.D., Sr., (Maternal Grandfather) and M.K.D. (Maternal

Grandmother), (collectively Grandparents), appeal from the order denying

their    petition   to   intervene    in   the   adoption   of   their   three-year-old

granddaughter, M.R.D. (Child) (born August 2016), by J.R.D. (Stepmother).

Upon review, we dismiss as moot.

        At the time of Child’s birth, S.A.D. (Father), and his wife, K.V.D.

(Mother), lived with Grandparents in their home in Clarion County. Orphans’

Court Opinion, 11/22/19, at 2. Mother suffered an aneurysm one day after




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*   Retired Senior Judge assigned to the Superior Court.
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giving birth to Child; as a result, Mother was in a vegetative state, and passed

away in December 2017.

      Father remained in Grandparents’ home with Child until June 23, 2018,

when Child was approximately 22 months old.          Orphans’ Court Opinion,

11/22/19, at 2. The Court of Common Pleas of Clarion County (custody court)

found that “the maternal grandparents physically prevented Child from leaving

with Father. . . .” Id. By order dated July 6, 2018, the custody court directed

that Child be returned to Father. Id. at 3, n. 1. Child has resided with Father

in Allegheny County since that time. Id. at 3.

      Litigation continued in the custody court, and by temporary order dated

July 13, 2018, the custody court granted Grandparents partial physical

custody on alternating weekends from Saturday at 10:00 a.m. until Sunday

at 5:00 p.m. Amended Preliminary Objections, 8/8/19, at Exhibit 1.

      At a time unspecified in the record, Father married Stepmother. On

June 20, 2019, Stepmother filed an adoption petition in Allegheny County

(adoption court) pursuant to 23 Pa.C.S.A. § 2701.          On July 26, 2019,

Grandparents filed a petition to intervene. Grandparents alleged that they

were not served with notice of the adoption petition, and learned of the

petition during the custody trial in July 2019.     In addition, Grandparents

claimed the custody court issued a final custody order on July 11, 2019,

finding that Grandparents stood in loco parentis to Child, inter alia.

Grandparents stated that they “wish to have a continuing relationship with


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their grandchild and to provide her with a positive influence in her life, and to

provide a sense of stability and family.” Petition to Intervene, 7/26/19, at ¶

15.

       On August 7, 2019, Stepmother filed preliminary objections, which she

amended on August 8, 2019.             Stepmother asserted she “was not legally

mandated to obtain consent from [Grandparents] or provide any notice” of

the adoption petition.       Amended Preliminary Objections, 8/8/19, at ¶ 10.

Stepmother stated that Grandparents “have failed to raise any legitimate or

legally sufficient basis in their [p]etition to [i]ntervene upon which relief may

be granted.” Id. at ¶ 18. As such, Stepmother requested that the adoption

court dismiss Grandparents’ petition to intervene.

       In her amended preliminary objections, Stepmother attached the July

11, 2019 custody order, which confirmed that the custody court found

Grandparents to be in loco parentis to Child.1        See Amended Preliminary

Objections, 8/8/19, Exhibit 2. In addition, the custody court granted Father

sole legal and primary physical custody, with Grandparents having partial

physical custody on alternating weekends from Friday at 7:00 p.m. until

Sunday at 6:00 p.m.; the order also provided for custody during holidays. Id.

at ¶ 3.    Although the custody court granted Father sole legal custody, it



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1By being in loco parentis, Grandparents have standing to file for any form of
physical or legal custody under the Child Custody Act, 23 Pa.C.S.A. §§ 5321-
5340. See 23 Pa.C.S.A. § 5324(2).

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directed that he “shall keep [Grandparents] informed of all major decisions

concerning the child including where she is attending day care, pre-school,

school, and medical treatment other than routine matters, and all information

that would have been deemed important to another parent.” Id. at ¶ 1. The

custody court also permitted Grandparents “full access to all documents and

information pertaining to the child upon request.” Id.

      The adoption court held oral argument on Stepmother’s amended

preliminary objections on October 8, 2019. Counsel introduced as exhibits,

and the court admitted, portions of the record from the custody action

including, but not limited to, transcripts from the July 1 - 2, 2019 custody

trial, and the July 11, 2019 custody order.

      Stepmother’s counsel argued, in part, that Grandparents failed to state

a claim upon which relief could be granted because they did not include in

their petition the remedy or relief they sought.         N.T., 10/8/19, at 17.

Grandparents’ counsel responded:

      With regard to relief, what we want is the ability to see the file,
      and we can’t see that unless we intervene because it’s sealed. . .
      . So had I been able to go to the courthouse and pull that pleading
      and make sure that the averments in the pleading are true and
      correct, I might not have had to file a Petition to Intervene. But I
      had no other way to get a copy of that information. It was not
      provided to my clients.




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N.T., 10/8/19, at 19.             Further,     Grandparents’   counsel argued   that

Grandparents had standing to intervene in the adoption proceeding because

they stood in loco parentis to Child in the custody action.2       Id. at 20.

       The adoption court concluded that Grandparents did not have standing

to intervene in the adoption proceeding. Id. at 23-24. By order dated October

8, 2019, the adoption court denied Grandparents’ petition to intervene. That

same day, the adoption court issued a decree granting the adoption by

Stepmother.

       On November 4, 2019, Grandparents timely filed a notice of appeal from

the order denying their petition to intervene. On November 22, 2019, the

adoption court filed an opinion without the benefit of a concise statement of

errors complained of on appeal, because Grandparents failed to file it

concurrently with their notice of appeal in contravention of Pa.R.A.P.

1925(a)(2)(i) and (b). By order dated November 26, 2019, this Court directed

Grandparents to file the concise statement by December 10, 2019, and they

timely complied. See In re K.T.E.L., 983 A.2d 745, 747 (Pa. Super. 2009)

(holding that appellant’s failure to strictly comply with Pa.R.A.P. 1925(a)(2)

did not warrant application of the waiver rule, as no court order had been

violated, and there was no prejudice to any party); Cf. J.M.R. v. J.M., 1 A.3d


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2We note Grandparents did not assert: (1) their in loco parentis status and
partial custody award would be terminated by Stepmother’s adoption; (2)
Stepmother is not fit to adopt Child; or (3) they wished to file an adoption
petition.

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902, 907 (Pa. Super. 2010) (stating that appellant’s failure to comply with an

order from this Court to file a Rule 1925(b) statement will result in the waiver

of the issues on appeal).

       On appeal, Grandparents request that we review “[w]hether the

[adoption] court abused its discretion or erred as a matter of law in denying

[their] petition to intervene in the adoption proceedings regarding their

grandchild[?]”3     Grandparents’ Brief at 8.        Grandparents contend that the

adoption court abused its discretion and/or committed an error of law

pursuant to Pa.R.C.P. 2327(4).4 In addition, they assert that it was in Child’s

best interests that they be permitted to intervene.




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3 When considering an appeal from an orphans’ court (the adoption court)
order, our standard of review is an abuse of discretion. In re Adoption of
R.J.S., 889 A.2d 92, 96 (Pa. Super. 2005). We have explained, “This [C]ourt
must determine whether the record is free from legal error and the orphans’
court’s factual findings are supported by the evidence.” Id. (citation omitted).

4   Rule 2327. Who May Intervene

       At any time during the pendency of an action, a person not a party
       thereto shall be permitted to intervene therein, subject to these
       rules if

                                               ...

           (4) the determination of such action may affect any legally
           enforceable interest of such person whether or not such person
           may be bound by a judgment in the action.

Pa.R.C.P. 2327(4).

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      Upon review, we find Grandparents’ issue moot. We have explained,

“‘An issue before a court is moot if in ruling upon the issue the court cannot

enter an order that has any legal force or effect.’” In Re D.A., 801 A.2d 614,

616 (Pa. Super. 2002) (en banc) (quoting Johnson v. Martofel, [797 A.2d

943, 946 (Pa. Super. 2002)]. This Court “may address mootness sua sponte,

as we generally cannot decide moot or abstract questions, nor can we enter a

judgment or decree to which effect cannot be given.” M.B.S. v. W.E., ___

A.3d ___, ___, 2020 Pa. Super. LEXIS 418, *7 (Pa. Super. 2020) (citations

omitted).

      The following exceptions apply to the mootness doctrine:

      1) the case involves a question of great public importance, 2) the
      question presented is capable of repetition and apt to elude
      appellate review, or 3) a party to the controversy will suffer some
      detriment due to the decision of the trial court. Erie Insurance
      Exchange v. Claypoole, 449 Pa. Super. 142, 673 A.2d 348 (Pa.
      Super. 1996); Commonwealth v. Smith, 336 Pa. Super. 636,
      486 A.2d 445 (Pa. Super. 1984).

In Re D.A., 801 A.2d at 616.

      Instantly, the adoption court issued the adoption decree, which

Grandparents did not contest, on October 8, 2019.        Because there is no

proceeding pending, this Court cannot enter a disposition that will have “any

legal force or effect.” Id.

      Further, the exceptions to the mootness doctrine do not apply. This

case does not present a question of great public importance, and the question

presented is not capable of repetition and apt to elude appellate review. On


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October 8, 2019, the adoption court issued both the order denying

Grandparents’   petition   to   intervene   and   the   adoption   decree,   and

Grandparents did not file a petition to set aside or vacate the adoption decree

in the adoption court. Finally, Grandparents will not suffer a detriment due to

the decision denying their petition to intervene. Section 5326 of the Custody

Act provides:

      § 5326. Effect of adoption.

      Any rights to seek physical custody or legal custody rights and any
      custody rights that have been granted under section 5324
      (relating to standing for any form of physical custody or legal
      custody) or 5325 (relating to standing for partial physical custody
      and supervised physical custody) to a grandparent or great-
      grandparent prior to the adoption of the child by an individual
      other than a stepparent, grandparent or great-grandparent
      shall be automatically terminated upon such adoption.

23 Pa.C.S.A. § 5326 (emphasis added).         Because Child was adopted by

Stepmother, Grandparents’ right to seek any form of physical or legal custody

under Section 5324 and their partial physical custody granted in the July 11,

2019 order will not be terminated by the adoption. Accordingly, we dismiss

Grandparents’ appeal as moot.

      Appeal dismissed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




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