J-A16029-17 & J-A16030-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: M.M., A MINOR        :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
APPEAL OF: W.M., SR., AND D.M.           :        No. 124 WDA 2017


                Appeal from the Order, December 15, 2016,
          in the Court of Common Pleas of Westmoreland County
                  Civil Division at No: CP-65-DP-64-2014

W.M., SR., AND D.M.,                     :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                       Appellants        :
                                         :         No. 11 WDA 2017
                  v.                     :
                                         :
WESTMORELAND COUNTY                      :
CHILDREN’S BUREAU                        :


             Appeal from the Order Entered December 1, 2016,
          in the Court of Common Pleas of Westmoreland County
                    Civil Division at No. 2245 of 2015-D

BEFORE:    STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.

                                             FILED: September 11, 2017

     I join the Majority’s memorandum but write separately to comment

upon the procedure in this case.    As the Majority ably describes in more

detail, this case involves a custody petition filed by appellants, who are

M.M.’s paternal grandparents, pursuant to the Child Custody Act, 23 Pa.C.S.

§§ 5321–5340, well after M.M. became a dependent child in the legal

custody of Westmoreland County Children’s Bureau (the “Agency”) pursuant

*Retired Senior Judge assigned to the Superior Court.
J-A16029-17 & J-A16030-17


to the Juvenile Act, 42 Pa.C.S. §§ 6301–6375.         Both M.M.’s paternal

grandparents and foster parents wish to adopt her and both filed petitions to

adopt pursuant to the Adoption Act.

     It is not clear why the trial court proceeded to act upon the

grandparents’ custody petition after the parental rights of M.M.’s parents

were terminated instead of proceeding straight to the dueling adoption

petitions. The competing desires to adopt M.M. are at the heart of this

matter, and award of custody is a mere “temporary stopgap.”          In the

Matter of Adoption of Sturgeon, 445 A.2d 1314, 1320 (Pa. Super. 1982).

The issues we have before us, and all that we have decided today, relate to

whether the paternal grandparents should have custody of M.M.           As a

procedural matter, the paternal grandparents may still attempt to pursue

their petition for adoption, and they may choose to appeal an adverse

determination, which will further delay permanency for M.M.1




1
  We note that both the Custody Act and the Adoption Act require the court
to examine the best interest of M.M., although the Adoption Act permits a
court to examine a child’s best interest in more general terms. Compare 23
Pa.C.S. § 2724(b) (requiring courts to determine the desirability of an
adoption based upon the “physical, mental and emotional needs and welfare
of the child”) with 23 Pa.C.S. § 5328 (requiring courts to apply 16 specific
factors to determine whether any form of custody is in the best interest of a
child). Nevertheless, an examination of M.M.’s best interest under the
Adoption Act is sure to have substantial overlap with the analysis already
performed by the court. Having ruled that it is not in the best interest of
M.M. for paternal grandparents to have any form of custody, it seems the
paternal grandparents would have an uphill battle to meet their burden of
demonstrating that their proposed adoption of M.M. would be in her best
interest.
                                      -2-
J-A16029-17 & J-A16030-17


      The trial court appeared to operate under the impression that it had to

grant or deny the paternal grandparents’ request for physical and legal

custody in its entirety. See Custody Case Trial Court Opinion, 12/1/2016, at

14   (“The     [trial   court]   emphasizes     that,   unlike   standard   custody

determinations, this case must end one way or another, with a grant of sole

physical and legal custody to one party. Any other result would create, in

essence, an indefinite dependency case with ongoing liabilities and pecuniary

responsibilities for the [Agency].”) This assumption is incorrect. Ultimately

the trial court will need to rule upon the pending adoption petitions, and if

the trial court chooses to grant the foster parents’ adoption petition, the

paternal grandparents’ right to any form of custody of M.M. will be legally

foreclosed.2    See 23 Pa.C.S. § 5326.        However, the trial court could have

opted to allow the Agency to retain legal custody but permit the paternal

grandparents to exercise partial physical custody up until the court ruled

upon the adoption petitions.

      Nevertheless, although not expressly phrased in this manner, it is

clear from the trial court’s opinion that it determined that it was not in


2
 Of course, if M.M.’s foster parents adopt her, they could permit M.M. to
have contact with paternal grandparents informally or pursuant to the
provisions of Act 101, 23 Pa.C.S. §§ 2371-2742. But if they adopt, this is a
decision only they can make. See In re Adoption of A.S.H., 674 A.2d 698,
701 (Pa. Super. 1996) (noting that an adoptive parent has discretion to
determine the people with whom the child should associate once the parent
adopts the child); In re Adoption of G.L.L., 124 A.3d 344, 348 (Pa. Super.
2015 (holding that the Act 101 open adoption process is completely
voluntary).
                                       -3-
J-A16029-17 & J-A16030-17


M.M.’s best interest to continue to visit with her paternal grandparents even

in the interim. This appears to let the tail wag the dog; cutting off contact

with paternal grandparents prevents any further relationship from being

forged, thereby weakening the chances that it would be in M.M.’s best

interest to be adopted by the paternal grandparents. See In the Interest

of R.W., __ A.3d __, 2017 WL 3568631 (Pa. Super. Aug. 18, 2017)

(Strassburger, J., concurring) (noting that by ordering a “substantial

reduction in visitation” prior to a hearing to terminate a parent’s parental

rights, the “trial court [] essentially stacked the deck against [the parent],

making it that much more difficult to prevail in these proceedings”).

However, the trial court’s decision is supported by the record, and it is not

an abuse of discretion.

      Once parental rights to M.M. were terminated and the decree was no

longer subject to appeal, the more prudent action would have been to

proceed directly to a hearing on the pending adoption petitions to determine

whether it was in the best interest of M.M. to be adopted by her foster

parents or her paternal grandparents. This would have permitted the trial

court to analyze her best interest with a direct comparison between the

paternal grandparents and her foster parents, instead of having to go

through the awkward exercise required by the Child Custody Act of applying

the custody factors to compare custody by the Agency to custody by her

paternal grandparents. Moreover, as M.M. had been in foster care for over


                                    -4-
J-A16029-17 & J-A16030-17


two years at the time the trial court began hearings regarding the paternal

grandparents’ custody petition, it certainly was in M.M.’s best interest to

take steps to finalize her permanency, instead of wasting time deciding who

should have custody of M.M. this far along in her dependency matter.

However, be that as it may, the Majority correctly analyzes the issues before

this Court and I join the Majority’s memorandum in full.

     Judge Stabile joins.




                                    -5-
