In Re: N.A.W., Appeal of: J.P.

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2022
• Docket: 723 WDA 2021
• Status: Unpublished

Opinion

J-A02031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.A.W. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: J.P. : : : : : : No. 723 WDA 2021

Appeal from the Order Entered May 20, 2021 In the Court of Common Pleas of Jefferson County Orphans' Court at No(s): No. 4A-2021 O.C.

BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: FEBRUARY 9, 2022

J.P., the biological father of N.A.W., appeals an order of the Court of

Common Pleas of Jefferson County Orphans’ Court (orphans’ court) denying

his petition to vacate an adoption decree concerning N.A.W. and her step-

father. The crux of J.P.’s appeal is that the orphans’ court erred in failing to

strictly comply with the Adoption Act (23 Pa.C.S. §§ 2101-2938), and in

entering the adoption decree before his parental rights had been terminated.

We affirm.

I.

N.A.W.’s step-father filed a Petition for Adoption and Name Change on

February 3, 2021. By the time this petition was filed, N.A.W. had turned 18

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* Retired Senior Judge assigned to the Superior Court. J-A02031-22

years old and was still finishing her senior year of high school. Two days later,

the orphans’ court scheduled a hearing to take place on April 30, 2021. At

the hearing, N.A.W. and her step-father were both represented by the same

attorney. They testified that they wished to formalize their father-daughter

relationship through a legal adoption. At the conclusion of the hearing, the

orphans’ court entered a final decree granting the petition and allowing N.A.W.

to assume her step-father’s last name.

J.P. did not receive notice of the hearing and had no opportunity to

either consent or contest N.A.W.’s adoption by her step-father. After learning

of the adoption decree, J.P. filed a petition to vacate it. He stated in his

petition that at the time the adoption decree was entered, there were two

binding orders which granted J.P. partial custody and imposed child support

conditions while N.A.W. was still in high school. Further, J.P. argued that the

adoption decree was invalid because, contrary to the requirements of the

Adoption Act, he had not been notified in advance of the adoption hearing,

N.A.W. and her step-father were represented by the same attorney, and

neither he nor N.A.W.’s biological mother had consented to the termination of

their parental rights.

The orphans’ court denied J.P.’s petition and he timely appealed, raising

the due process and statutory interpretation grounds discussed above. The

orphans’ court, in turn, filed a 1925(a) opinion setting forth the reasons why

the order denying J.P.’s petition should be affirmed. Essentially, the orphans’

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court reasoned that the consent and representation requirements of the

Adoption Act do not apply once the adoptee is no longer under the age of 18

years of age, regardless of whether the adoptee is still in high school and

ostensibly subject to a custody order. Since the adoptee had reached

adulthood, the consent of biological parents was not required, and to the

extent that J.P. was still bound to make support payments, he would be free

to seek relief on the ground that his biological daughter had ceased being his

legal child. See generally, Orphans’ Court 1925(a) Opinion, 8/13/2021, at

1-2.

II.

J.P. first contends that the orphans’ court did not strictly comply with

the Adoption Act when it concluded that two statutory provisions ceased to

apply once the putative adoptee, N.A.W., had turned 18 years old. According

to J.P., the orphans’ court erred in determining as a matter of law that

N.A.W.’s age (a) made it unnecessary for the orphans’ court to obtain J.P.’s

consent to the adoption, and (b) made it permissible for N.A.W. and her step-

father to be represented during the adoption proceedings by the same

attorney.

As to the notice and parental consent requirements of the Adoption Act,

Section 2714 provides that:

Consent of a parent to adoption shall not be required if a decree of termination with regard to such parent has been entered. When parental rights have not previously been terminated, the court may find that consent of a parent of the adoptee is not required

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if, after notice and hearing as prescribed in section 2513 (relating to hearing), the court finds that grounds exist for involuntary termination under section 2511 (relating to grounds for involuntary termination).

23 Pa.C.S. § 2714. J.P. argues here that his consent was needed in order for

the orphans’ court to grant his daughter’s adoption petition because his

parental rights had never been terminated and no grounds for involuntary

termination had been presented. In J.P.’s view, his lack of notice and consent

and the orphans’ court’s non-compliance with Section 2714 render the subject

adoption decree null and void.

However, the Adoption Act outlines circumstances in which a biological

parent does not have to be notified that their child is being adopted by another

party. Crucially, 23 Pa.C.S. § 2711 requires the consent of an adoptee’s

parents if the adoptee “has not reached the age of 18 years.” Section 2713

allows the orphans’ court, “in its discretion, [to] dispense with consents other

than that of the adoptee to a petition for adoption when . . . the adoptee is

over 18 years of age[.]”1 A parent’s right to notice of an adoption hearing is

contingent on whether that parent’s consent is required. See 23 Pa.C.S. §

1 The notice and consent provisions also do not apply where the trial court has been presented with sufficient evidence that the husband of the biological mother is not the putative adoptee’s biological father. See 23 Pa.C.S. § 2711(b). This statute is inapposite because J.S.’s status as the biological father of N.A.W. is not in question.

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2721 (“Notice of the hearing shall be given to all persons whose consents are

required[.]”).

It is undisputed here that N.A.W. is an adoptee over 18 years of age, so

the orphans’ court was within its discretion to dispense with the notice and

consent provisions of the Adoption Act.2 J.P. therefore had no entitlement to

advance notice of the adoption proceedings, and his lack of notice has no

effect on the validity of the adoption decree.

J.P.’s next contention concerns the orphans’ court’s interpretation of

Section 2313(a), which mandates that “[n]o attorney or law firm shall

represent both the child and the adopting parent or parents.” See 23 Pa.C.S.

§ 2313(a). Like all provisions of the Adoption Act, this requirement must be

“strictly complied with.” In re Adoption of Baby Boy D, 769 A.2d 508, 509

(Pa. Super. 2001).

The orphans’ court in this case construed Section 2313(a) as applying

only when the child is under the age of 18. That is, the orphans’ court found

that N.A.W. is not a “child” in this context because she had already reached

the age of majority by the time the adoption decree was entered. J.P. notes,

however, that the Adoption Act does not define “child” or otherwise specify

explicitly that the term as used in Section 2313(a) refers to a person under

2J.P. identifies no legal or factual basis as to why, within the context of 23 Pa.C.S. § 2713, it was an abuse of discretion for the orphans’ court to dispense with the Adoption Act’s notice requirements.

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the age of 18 years of age. He asserts that the offspring of a parent is always

the parent’s “child,” regardless of the child’s age, and that the adoption decree

is null and void due to N.A.W. and her step-father being jointly represented

by the same attorney.

Before addressing the merits of this issue, we must first determine

whether J.P. has standing to assert it. “[T]he question of standing is whether

a litigant is entitled to have the court decide the merits of the dispute or of

particular issues.” Silfies v. Webster, 713 A.2d 639, 642 (Pa. Super. 1998).

“Standing . . . looks to the party bringing a legal challenge and asks whether

that party has actually been aggrieved as a prerequisite before the court will

consider the merits of the legal challenge itself.” Com. ex rel. Jud. Conduct

Bd. v. Griffin, 918 A.2d 87, 93 (Pa. 2007); see also Pa.R.A.P. 501 (“Only an

aggrieved party can appeal from an order entered by a lower court.”). “A

party is ‘aggrieved’ when the party has been adversely affected by the decision

from which the appeal is taken.’” Ratti v. Wheeling Pittsburgh Steel

Corp., 758 A.2d 695, 700 (Pa. Super. 2000); see also In re J.G., 984 A.2d

541, 546 (Pa. Super. 2009) (same).3

3 “Questions of law are subject to a de novo standard of review.” Robert Half Int’l, Inc. v. Marlton Techs., Inc., 902 A.2d 519, 524 (Pa. Super. 2006) (citation omitted). This Court may affirm an order of the trial court for any reason that is supported by the certified record. See D.G. v. D.G., 91 A.3d 706, 712 n.3 (Pa. Super. 2014).

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Here, J.P. does not have standing to raise the issue of separate

representation under Section 2313(a) because, as discussed above, N.A.W.

did not need J.P.’s consent in order to be adopted by her step-father, and J.P.

was not entitled to notice of the adoption proceedings. By operation of the

provisions in the Adoption Act, N.A.W.’s status as a legal adult terminated

J.P.’s entitlement to notice and consent that the adoption proceedings were

taking place.4 Since he had no right to intercede on N.A.W.’s behalf, and the

right to separate counsel is one that belongs exclusively to N.A.W. and her

step-father, J.P. is not an aggrieved party as a matter of law. Because J.P.

lacks standing to challenge the adoption decree, he is precluded from relief as

to his Section 2313(a) claim.

III.

J.P.’s final argument is that the orphans’ court adoption decree is a

nullity because his parental rights had not first been terminated before it was

entered. He refers to orders granting him partial physical custody over N.A.W.

and obligating him to make support payments while N.A.W. was still in high

school, regardless of N.A.W.’s age. Additionally, J.P. argues that he has a

4As will be discussed in greater detail below, the adoption decree had no effect on J.P.’s rights over N.A.W. despite that two separate custody orders ostensibly presumed a degree of parental authority. The order granting J.P. partial custody over N.A.W. ceased having legal effect once N.A.W. turned 18. The order directing J.P. to make support payments while N.A.W. was still in high school would be superseded by the adoption decree, not constitute grounds to vacate it.

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right to preserve the military benefits that N.A.W. would only be entitled to as

his legal child.

We find no merit in this issue because it rests on the faulty premise that

the adoption decree had any practical effect on the rights afforded to him by

the two custody orders. First, the partial physical custody order could have

had no legal force once N.A.W. reached the age of majority. As an adult,

N.A.W. is free to come and go as she pleases, and she cannot be compelled

to submit to J.P.’s partial custody.

Second, the order requiring J.P. to make monthly support payments

ceased having practical legal force once N.A.W. turned 18 and disclaimed her

status as J.P.’s daughter. While the adoption decree would give J.P. grounds

to terminate the support order, it did not preserve J.P.’s parental right to

contest the adoption decree after N.A.W. became an adult. See 23 Pa.C.S. §

2713.

Finally, to the extent that N.A.W. was only entitled to military benefits

as J.P.’s legal daughter, she was free to renounce such rights once she reached

the age of majority. N.A.W. was under no obligation to remain J.P.’s legal

child and forego adoption and, inversely, the availability of those benefits did

not confer on J.P. any continuing parental authority or additional statutory

rights over N.A.W. after she had turned 18. Accordingly, the orphans’ court

did not err in entering the adoption decree or in denying J.P.’s petition to

vacate that decree.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/9/2022

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