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HomeMy WebLinkAbout98-1530 civilK W. H AND L A H. , PLA!HTIFFS W L. H , DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL TERM IN RE: PETITION TO MODIFY A CUSTODY ORDER OF JULY 10, 1998 OPINION AND ORDER OF COURT BAYLEY, J., December 27, 1999:- K W. H and L A H , his wife, filed a petition seeking to modify a custody order entered on July 10, 1998, regarding Baby Girl B who was born in Florida on July 29, 1997. A hearing was conducted on October 20, 1999. Immediately after her birth, B 's mother placed her for adoption with Adoption Placement, Inc., in Ft. Lauderdale, Florida. The mother and her boyfriend fraudulently represented that the boyfriend was B 's father when in fact W L. H was her father. Using the auspices of Adoption Horizons in Shippensburg, Cumberland County, Pennsylvania, the Florida adoption agency placed B with K and L H who live in Shippensburg. When W L. H found out that his daughter had been placed for adoption without his consent, he immediately sought to gain custody of his child. He challenged a petition for involuntary termination of parental rights that was filed by the H in this court. Following a hearing at which H appeared, and finding that a prerequisite for the termination of H 's parental rights had not been met under the Adoption Act at 23 Pa.C.S. Section 2511(a)(6), a decree nisi was entered on May 13, 1998, supported by a written opinion, 98-1530 CIVIL TERM denying a petition of the H to terminate H 's parental rights to B ?-lo post-trial motion was filed to the decree nisi. The H then filed a complaint in this court for custody of B . H , who lived in Tampa, Florida, objected. Concluding that the H had standing to seek custody under Mollander v. Chiodo, 450 Pa. Super. 247 (1996), a hearing was conducted at which H appeared? An order was entered on July '10, '!998, supported by a written opinion, awarding legal and physical custody of Baby Girl B to her father W L. H , but granting to H temporary physical custody of B in Florida or any other place B lives for one week each year, and in Pennsylvania for one week each year, the two weeks not to be consecutive. The order provided that if the H exercised such periods of temporary physical custody they were to make arrangements with H at least forty-five days in advance, that they would provide all transportation, and that H would keep the H informed of any changes in B 's address. The H , having not secured primary Adoption of Baby Girl B , 47 CLJ 211 (1998). 2 In Mollander, a mother placed her daughter with appellants who thereafter filed a petition to adopt the child to which was attached the written consent of the mother. The mother then filed a motion to revoke her consent which was granted. The mother thereafter filed a petition to dismiss the adoption petition and gain custody of her child. Appellants countered with a petition for custody of the child for which they claimed in Ioco parentis status. Citing Cardamone v. Elshoff, 442 Pa. Super. 263 (1995), the Superior Court of Pennsylvania held that appellants, by virtue of the child having been placed in their care pending adoption, acquired in Ioco parentis status which continued after the mother revoked her consent and gave them standing to seek custody of the child. -2- 98-1530 CIVIL TERM physical custody of B , filed an appeal to the Superior Court of Pennsylvania. H did not participate in the appeal but the custody order was affirmed on April 9, 1999, __ Pa. Super. __ (1087 HGB 1998). The Superior Court also noted that the H had standing to seek custody under Mollander v. Chiodo, supra. A petition for allowance of appeal was denied by the Supreme Court of Pennsylvania. __ Pa. __ (433 M.D. DKT 1999). Pursuant to the custody order of July 10, 1998, H , after a period of transition, had taken physical custody of B in August, 1998. The H then had the child in Florida for a week of temporary physical custody in December, 1998. Their contact with B was made at the residence of the paternal grandmother. On July 25, 1999, the grandmother, in a phone call, told the H that the father would no longer allow them any further contact with B . When they were unable to make arrangements to bring B to Pennsylvania for a week pursuant to the order of July 10, 1998, the H , on August 20, 1999, filed the within petition to modify the custody order. The father did not appear at the hearing on the petition. The H testified that the father no longer lives in Tampa and they do not know where he and B now live. They maintain that these circumstances warrant a change in the custody of B . In B.A. and A.A.v.E.E., Pa. __ (1999 WL 1062847), decided by the Supreme Court of Pennsylvania on November 24, 1999, a mother placed her child born on January 4, 1996, with an adoption agency the day after the birth. The agency -3- 98-1530 CIVIL TERM immediately placed the child with a couple for adoption. The couple initiated adoption proceedings. The father would not conser;,':: to the adoption. On February 26, 1996, the father filed a complaint for physical custody. The couple who sought to adopt the child filed a motion to intervene in that case. The trial court granted the motion on the grounds that the couple stood in Ioco parentis to the child. On November 13, 1996, the trial court awarded primary physical custody of the child to the couple who sought the adoption and the father appealed. The Superior Court of Pennsylvania affirmed, holding that the natural mother's decision to grant custody to the adoption agency which in turn granted it to the couple pending an adoption, conferred on that couple Ioco parental status, and that considering the child's physical, intellectual, moral and spiritual wellbeing, the trial court did not error in awarding custody to that couple. The father appealed and the Supreme Court heard the case to decide the issue of whether it was error to allow the prospective adoptive parents the right to intervene in the custody case by conferring upon them Ioco parentis status. The Court, while acknowledging the case of Cardamone v. Elshoff, 442 Pa. Super. 263 (1995), which was relied on in Mollander v. Chiodo, supra, nevertheless concluded that unless the natural parent's prima facie right to custody is successfully overcome via a dependency proceeding, "A third party cannot place himself in Ioco parentis in defiance of the parents' wishes in the parent/child relationship." The Court concluded: The record in this case establishes that [the father] attempted to gain custody of his child from shortly after the child was born until the present. He opposes the adoption and he seeks custody of the child himself. It is -4- 98-1530 CIVIL TERM plain that [the couple who seek to adopt] retain custody of his child in defiance of his wishes. The lower courts were in error, therefore, in conferring standing upon the prospective adoptive parents. The order of the Superior Court is reversed and the trial court's order granting custody to [the proposed adoptive parents] is vacated. The case is remanded for a hearing on the custody petition filed by [the father]. (Emphasis added.) Based on the decision of the Supreme Court in B.A. and A.A., the holding of the Superior Court in Mollander v. Chiodo, supra, upon which this court was bound and the Superior Court relied in acknowledging the H standing to seek custody of B , is no longer the law. Now the law of Pennsylvania is that proposed adoptive parents with whom a child has been placed, but which adoption does not occur because of the objection of a parent, have no standing to seek custody of the child. Therefore, under B.A. and A.A., the H do not have standing to seek modification of the custody order of July 10, 1998.3 ORDER OF COURT AND NOW, this ,~._,"1,¥"' day of December, 1999, the petition of K W. H and L A H to modify the custody order dated July 10, 1998, IS DISMISSED. 3 This case represents the risk inherent in accepting placement of a child on the hope that the child can be adopted. As there are risks for parents having a healthy child, there is a risk when one accepts a child on a placement for adoption, that until the rights of the parents are terminated and the adoption becomes final, custody of that child can be lost by the proposed adoptive parent. How one views that risk is undoubtedly dependent on whether your point of view is that of a parent whose child has been placed for adoption, or a prospective adoptive parent who loves and cares for that child for a period of time, but who ultimately cannot legally adopt the child. The Legislature sets the law in this regard and the Supreme Court of Pennsylvania is the final interpreter of the law. -5- 98-1530 CIVIL TERM James D. Flower, Jr., Esquire For Plaintiffs W L. H , Pro se By the Court,'~? "'" Edgar B. Bayley, :saa -6-