J-A03022-17

2017 PA Super 56

K.W. 

Appellant

v.

S.L. & M.L.

v.

G.G.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1372 MDA 2016

Appeal from the Order Entered August 8, 2016

in the Court of Common Pleas of York County 

Civil Division at No: 2015-FC-002204-03

BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

OPINION BY STABILE, J.: FILED MARCH 06, 2017

K.W. (“Father”) appeals from the order entered August 8, 2016, in the 

Court of Common Pleas of York County, which denied his preliminary 

objections and granted S.L. and M.L. (“Appellees”) in loco parentis standing 

to pursue custody of Father’s minor daughter, M.L. (“Child”). After careful 

review, we vacate and remand for further proceedings consistent with this 

opinion.1

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1

In his brief, Father indicates that he also is challenging the interim custody 

order entered November 17, 2015, in Centre County. Father’s brief at 13, 

16. Assuming that we have jurisdiction to address the November 17, 2015 

order, our review of the record reveals that it is no longer in effect, as it was 

replaced by an interim custody order entered April 12, 2016. Thus, any 

challenge to that order is now moot.
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Child was born in August 2015 to Father and G.G. (“Mother”). Father 

and Mother dated briefly from October 2014 until approximately December 

12, 2014. N.T., 8/1/16, at 7. While the details are not entirely clear from 

the record, it appears that Mother discovered that she was pregnant with 

Child shortly after her separation from Father. Id. at 38. However, Mother 

did not directly inform Father of her pregnancy. Id. at 37-40. In March 

2015, Mother contacted Bethany Christian Services (“BCS”) in order to place 

Child for adoption. Id. at 43. BCS placed Child in the care of Appellees two 

days after her birth. Id. at 71. 

Meanwhile, BCS attempted to locate Father. While Mother provided 

BCS Father’s name, she could not initially provide any other contact 

information. Id. at 43. Mother later assisted BCS in identifying Father’s 

Facebook profile. Id. at 44. BCS first attempted to contact Father on July 

29, 2015, by sending him a Facebook message. Id. at 43. BCS also sent 

friend requests to Father on July 30, 2015, and August 14, 2015. Id. at 46. 

Father did not respond to the message sent by BCS, nor did he accept the 

friend requests.2 Id. at 46-47. BCS made several other attempts at 

contacting Father, including calling the employer listed on Father’s Facebook 

profile, without success. Id. at 48-49. Finally, with Mother’s assistance, 

____________________________________________

2

Father testified that BCS sent him messages, but that he did not notice 

them because his Facebook account treated them as “spam.” N.T., 8/1/16, 

at 13-14. BCS employee, Jessica Crawford, could not confirm or deny 

whether Father actually viewed any messages. Id. at 46. 
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BCS located several of Father’s last known addresses. Id. at 49, 64. BCS 

sent letters to Father on September 16, 2015. Id. at 64. Father received 

these letters on September 19, 2015, and contacted BCS to set up a 

meeting. Id. at 11-12. On approximately October 14, 2015, Father 

informed BCS that he did not want Child to be adopted. Id. at 58.

The subsequent procedural history of this matter is convoluted. On 

October 30, 2015, Father filed a custody complaint in Centre County, 

naming Mother as the only defendant.3 Father also filed an emergency 

petition on November 6, 2015, in which he requested that BCS be ordered to 

provide him with the current whereabouts of Child, among other things. The 

Centre County trial court issued an order granting Father’s petition that 

same day. On November 17, 2015, the Centre County court entered an 

order transferring Father’s case to Lycoming County, as well as an interim 

custody order awarding primary physical custody of Child to Appellees, and 

awarding partial physical custody to Father as agreed upon by the parties. 

On November 25, 2015, Appellees filed a custody complaint in York 

County. That same day, Appellees filed a notice of appeal from the Centre 

County trial court’s order transferring Father’s case to Lycoming County. In 

their concise statement of errors complained of on appeal, Appellees alleged 

____________________________________________

3

Father resides in Lycoming County, Mother resides in Northumberland 

County, and Appellees reside in York County. It appears that Father filed his 

complaint in Centre County because BCS has its place of business there. 
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that the Centre County court erred by failing to join them as necessary 

parties to the custody action, and by failing to transfer the case to York 

County, on the basis that York County is Child’s “home county” pursuant to 

the Pennsylvania Rules of Civil Procedure. By order entered December 17, 

2015, the Centre County court rescinded its prior order transferring the case 

to Lycoming County, and transferred the case to York County instead. 

Appellees then discontinued their appeal. 

On February 26, 2016, Father filed preliminary objections to Appellees’ 

custody complaint.4 In his preliminary objections, Father argued that 

Appellees do not have standing to pursue custody of Child. Specifically, 

Father argued that Appellees do not stand in loco parentis to Child, because 

he did not consent to Child being placed with Appellees. Appellees filed an 

answer to Father’s preliminary objections on March 16, 2016. On March 18, 

2016, the York County trial court entered an order dismissing Appellees’ 

complaint “without prejudice to either party to refile and request another 

conciliation conference,” on the basis that the parties’ conciliation conference 

was continued and then not rescheduled within the time required by local 

practice and procedure. Order, 3/18/16, at 2. On March 21, 2016, Father 

filed a praecipe to schedule a new conciliation conference, which the court 

granted.

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4

Father attached a copy of a paternity test, dated January 25, 2016, 

confirming that he is Child’s biological father. 
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On April 4, 2016, Father filed an additional custody complaint in York 

County.5 The trial court entered an interim custody order on April 12, 2016, 

maintaining primary physical custody with Appellees, awarding Father partial 

physical custody during certain weekends, and awarding shared legal 

custody to all parties. On May 23, 2016, Father filed a praecipe to list his 

preliminary objections for one-judge disposition. On August 1, 2016, 

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5 On May 25, 2016, the trial court entered an order consolidating all three 

custody complaints. In its opinion, the court provided the following 

explanation concerning the procedural posture of this case.

Overall, before this Court are three (3) Custody Complaints 

consolidated by agreement of the parties and an Order dated 

May 25, 2016. Father filed Preliminary Objections to the second 

Custody Complaint which was filed by [Appellees]. [The 

Honorable Andrea] Marceca Strong dismissed the second 

Custody Complaint filed by [Appellees] approximately thirty-nine 

(39) minutes after an Application for Continuance was filed by 

the parties for the conciliation conference relating to the second 

Custody Complaint. . . . [T]his Court finds that the dismissal on 

March 18, 2016[,] of the Custody Complaint filed by [Appellees], 

which had been consolidated with Father’s Custody Complaint 

upon transfer of Father’s complaint to York County, was in error 

and superseded by the Order signed by [York County President 

Judge, the Honorable Joseph C.] Adams on March 21, 2016[,] 

which rescheduled the conciliation conference relating to 

[Appellees’] and Father’s Custody Complaints. Subsequent to 

the third Custody Complaint being filed by Father on April 4, 

2016, this matter was assigned to the undersigned Judge[,] [the 

Honorable Todd R. Platts]. This Court conducted a pre-trial 

conference with the parties at which time counsel for all three 

parties agreed that the three (3) custody actions should be 

consolidated under one caption with Father as the moving party 

and that Father’s Preliminary Objections were still pending as to 

whether or not [Appellees] had standing in the matter.

Trial Court Opinion, 8/8/16, at 5-6. 
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Appellees filed a motion to strike Father’s praecipe for one-judge disposition, 

or, in the alternative, preliminary objections to Father’s preliminary 

objections. 

The trial court held a hearing to address Father’s preliminary 

objections on August 1, 2016. Following the hearing, on August 8, 2016, 

the court issued an order and opinion denying Father’s preliminary 

objections, and granting Appellees in loco parentis standing.6 Father timely 

filed a notice of appeal on August 19, 2016, along with a concise statement 

of errors complained of on appeal. On September 2, 2016, the court issued 

a supplemental opinion, in which it indicated that the reasons for its decision 

could be found in the opinion accompanying the August 8, 2016 order, and 

that no additional explanation would be necessary. 

Before reaching the merits of Father’s appeal, we must first consider 

whether the August 8, 2016 order was properly appealable. “‘[S]ince we 

lack jurisdiction over an unappealable order it is incumbent on us to 

determine, sua sponte when necessary, whether the appeal is taken from an 

appealable order.’” Gunn v. Automobile Ins. Co. of Hartford, 

Connecticut, 971 A.2d 505, 508 (Pa. Super. 2009) (quoting Kulp v. 

Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000)). It is well-settled that, 

“[a]n appeal lies only from a final order, unless permitted by rule or 

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6 The order also denied the motion to strike and preliminary objections filed 

by Appellees. 
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statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). 

Generally, a final order is one that disposes of all claims and all parties. See 

Pa.R.A.P. 341(b). 

Father concedes that the August 8, 2016 order is not a final order 

pursuant to Pa.R.A.P. 341(b). Father’s Brief at 21. Instead, Father insists 

that the order is appealable pursuant to the collateral order doctrine. See 

Pa.R.A.P. 313(a) (providing that an appeal may be taken as of right from a 

collateral order of a lower court). “A collateral order is an order separable 

from and collateral to the main cause of action where the right involved is 

too important to be denied review and the question presented is such that if 

review is postponed until final judgment in the case, the claim will be 

irreparably lost.” Pa.R.A.P. 313(b). 

Father argues that the August 8, 2016 order meets the requirements 

of the collateral order doctrine because it “is collateral to the main issue of 

child custody and . . . because it impacts the number of parties who will 

participate in the action, and it cannot be delayed until a final order is issued 

without being lost.” Father’s Brief at 22. In support of this position, Father 

directs our attention to K.C. v. L.A., 128 A.3d 774 (Pa. 2015). Id. Father 

contends “there is no meaningful difference” between K.C. and this case.7 

Id. at 23. 

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7 The trial court did not address the issue of appealability in its opinion 

accompanying the August 8, 2016 order, or in its supplemental opinion.
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In K.C., our Supreme Court held that an order denying intervention in 

a child custody case due to a lack of standing meets both the first and 

second prongs of the collateral order doctrine, as standing is an issue 

separable from, and collateral to, the main cause of action in a child custody 

case, and because the right to intervene in custody cases implicates 

Pennsylvania’s “paramount interest in the welfare of children and, as a 

result, in identifying the parties who may participate in child custody 

proceedings[.]” K.C., 128 A.3d at 779-80. We agree with Father that the 

reasoning employed in K.C. applies with equal force here.

However, we find that K.C. is distinguishable with respect to the third 

prong of the collateral order doctrine. In that case, the appellants argued 

that their claim would be irreparably lost pursuant to In Re Barnes 

Foundation, 871 A.2d 792 (Pa. 2005), in which our Supreme Court held 

that an order denying intervention must be appealed within thirty days. Id.

at 778. Our Supreme Court agreed, reasoning that the appellants would be 

unable to appeal the order denying their petition to intervene if they waited 

until the completion of the underlying custody proceedings. Id. at 780. If 

the appellants attempted to appeal from the order denying intervention after 

the entry of a final custody order, their appeal would be untimely pursuant 

to Barnes. Id. Further, the appellants would not be permitted to appeal 

from the final custody order itself, as the fact that they were denied 

intervention meant that they were not parties to the custody action. Id. 
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Here, in contrast, Father has not been denied intervenor status. Barnes

does not apply, and Father remains a party to the underlying custody action. 

Nonetheless, we conclude that Father’s claim will be irreparably lost if 

we postpone review until the entry of a final order. Standing in child 

custody cases is a matter of constitutional significance. As our Supreme 

Court has emphasized, “the right to make decisions concerning the care, 

custody, and control of one’s children is one of the oldest fundamental rights 

protected by the Due Process Clause” of the Fourteenth Amendment. Hiller 

v. Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530 

U.S. 57, 120 S.Ct. 2054 (2000)). Mindful of this fundamental right, our law 

presumes that parents are fit and make decisions in their children’s best 

interest, “absent factors such as abuse, neglect, or abandonment.” D.P. v. 

G.J.P., 146 A.3d 204, 214 (Pa. 2016). 

Allowing third parties to seek custody of a child burdens the 

constitutional rights of parents. Id. at 210, 213. In D.P., our Supreme 

Court emphasized the importance of permitting parents to challenge 

standing in child custody cases, in order to protect those rights. The Court 

reasoned as follows.

Therefore, as illustrated presently, whenever there are contested 

issues relating to standing, [the Child Custody Act] gives parents 

the ability to bifurcate the proceedings by seeking dismissal for 

lack of standing, thereby requiring that any such preliminary 

questions be resolved before the complaint’s merits are reached.

The potential for such bifurcation serves an important screening 

function in terms of protecting parental rights. As suggested, it 

facilitates early dismissal of complaints, thereby relieving 
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families of the burden of litigating their merits where a sufficient 

basis for standing is absent. Accord Rideout v. Riendeau, 761 

A.2d 291, 302–03 (Me. 2000) (plurality) (indicating that, in a 

bifurcated procedure, grandparent-standing requirements 

“provide[ ] protection against the expense, stress, and pain of 

litigation, unless and until the grandparents have convinced the 

court that they are among those grandparents who may pursue 

visits”). Indeed, a majority of Justices in Troxel recognized that 

such litigation can itself impinge upon parental rights, especially 

if it becomes protracted through the appellate process. See

Troxel, 530 U.S. at 75, 120 S.Ct. at 2065; id. at 101, 120 S.Ct. 

at 2079 (Kennedy, J., dissenting); accord Blixt v. Blixt, 437 

Mass. 649, 774 N.E.2d 1052, 1065–66 (2002).15 . . . .

15 Hiller also took notice of the costs associated with custodial 

litigation, indicating that grandchildren are not benefitted when 

“grandparents force their way into [their] lives through the 

courts, contrary to the decision of a fit parent,” and adding that 

such consideration was “especially resonant given the strain that 

custody litigation places on the children as well as parents and 

grandparents[.]” Hiller, 588 Pa. at 359 & n.20, 904 A.2d at 886 

& n.20 (citing Troxel, 530 U.S. at 101, 120 S.Ct. at 2079 

(Kennedy, J., dissenting) (describing that custody litigation tends 

to be disruptive of family life and that, for a parent struggling 

financially, the monetary costs can undermine the parent’s plans 

for the child’s future)). Other courts have made similar 

observations. See, e.g., Conlogue v. Conlogue, 890 A.2d 

691, 699 (Me. 2006) (proffering that the strains of litigation 

“include various forms of pressures and stress that can pose a 

real threat to family well-being” (internal quotation marks and 

citations omitted)); Hawk v. Hawk, 855 S.W.2d 573, 577 n.2 

(Tenn. 1993) (noting that such stresses include those that arise 

from the public disclosure of the details of private, intergenerational disputes); cf. id. at 576 n.1 (suggesting that courtordered grandparent visitation in a family where there is 

animosity between the parents and grandparents can intensify 

the animosity and, as such, can be contrary to the child’s best 

interests).

Id. at 213; see also id. at 218 (Baer, J., concurring and dissenting) (“I 

agree with the majority that Subsection 5325(2) implicates parents’ 
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fundamental right to be free from litigation regarding their children, 

especially in light of the nature of child custody litigation and the negative 

effects it can have on children.”).

Thus, Father has a fundamental constitutional right to parent Child. 

This includes the right to be free of custody litigation involving third parties. 

If we quash this appeal and remand to the trial court, Father will be 

subjected to extensive litigation involving Appellees, including a custody 

hearing and a second appeal on the exact issue he now seeks to raise. Not 

only would Father incur a substantial financial burden as a result of this 

litigation, but he also could lose months of time caring for and bonding with 

Child as the custody hearing and appeals process drags on. Under the 

unique circumstances of this case, where Father was deprived of Child by a 

private adoption agency without the benefit of a hearing or other due 

process protections, this Court could not hope to fully vindicate or restore 

Father’s rights by the time of his second appeal. We therefore conclude that 

the August 8, 2016 order satisfies all three prongs of the collateral order 

doctrine, and that Father’s appeal is properly before us.

We may now turn our attention to the merits of Father’s appeal. 

Father raises the following issues for our review. 

1. Whether the trial court erred or abused its discretion when it 

overruled [Father’s] preliminary objection pursuant Pa.R.C.P. No. 

1028(5) averring that [Appellees] lack standing for any form of 

custody and its conclusion that [Appellees] stand in loco parentis

to [Child] despite lacking consent of the natural father, [Father?]
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2. Whether the trial court erred or abused its discretion when it

held that [Father] involuntarily or impliedly consented to in loco 

parentis status granted [Appellees] by the trial court of Centre 

County and failing to recognize that the consent of either parent 

may be withdrawn, terminating in loco parentis status[?]

3. The trial court erred or abused its discretion by concluding 

that in loco parentis status can be validly conferred by judicial 

error. 

Father’s Brief at 8-9. While Father asks us to consider three separate 

issues, his arguments with respect to each issue are essentially the same. 

Father argues that the trial court erred by denying his preliminary objections 

and granting Appellees in loco parentis standing to seek custody of Child.

“Threshold issues of standing are questions of law; thus, our standard 

of review is de novo and our scope of review is plenary.” Rellick-Smith v. 

Rellick, 147 A.3d 897, 901 (Pa. Super. 2016) (quoting Johnson v. 

American Standard, 8 A.3d 318, 326 (Pa. 2010)).

Generally, the Child Custody Act does not permit third parties to seek 

custody of a child contrary to the wishes of that child’s parents. The Act 

provides several exceptions to this rule, which apply primarily to 

grandparents and great-grandparents. See 23 Pa.C.S.A. § 5324(3); 23 

Pa.C.S.A. § 5325. In fact, unless a person seeking custody is a parent, 

grandparent, or great-grandparent of the child, the Act allows for standing 

only if that person is “in loco parentis.” 23 Pa.C.S.A. § 5324(2).

“The term in loco parentis literally means ‘in the place of a parent.’” 

Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005) (citing Black's Law 

Dictionary, 791 (7th Ed. 1991)). A person stands in loco parentis with 
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respect to a child when he or she “assum[es] the obligations incident to the 

parental relationship without going through the formality of a legal adoption. 

The status of in loco parentis embodies two ideas; first, the assumption of a 

parental status, and, second, the discharge of parental duties.” Id. (quoting 

T.B. v. L.R.M., 786 A.2d 913, 916–17 (Pa. 2001)). Critical to our discussion 

here, “in loco parentis status cannot be achieved without the consent and 

knowledge of, and in disregard of[,] the wishes of a parent.” E.W. v. T.S., 

916 A.2d 1197, 1205 (Pa. 2007) (citing T.B., supra).

Instantly, the trial court found that Appellees stand in loco parentis 

with respect to Child, because they have assumed parental status and 

discharged parental duties on Child’s behalf since shortly after her birth. 

Trial Court Opinion, 8/8/16, 6-8. The court reasoned that Father gave his 

implied consent to Appellees’ in loco parentis standing because he did not 

express interest in parenting Child until almost a month after being informed 

that she was residing with a prospective adoptive family. Id. at 8.

Father contends that the trial court erred because he did not expressly 

consent to Appellees’ in loco parentis standing, and because implied consent 

is not permissible under Pennsylvania law. Father relies on B.A. v. E.E. ex 

rel. C.E., 741 A.2d 1227 (Pa. 1999). In that case, the subject child, M., was 

born on January 4, 1996, to two teenage parents. Id. at 1228. The day 

after M.’s birth, her mother, E., gave custody of M. to Genesis of Pittsburgh, 

an adoption agency. Id. Genesis placed M. with prospective adoptive 

parents and E. signed a consent to adoption form. Id. Genesis forwarded a 
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similar consent to adoption form to M.’s father, A., but he refused to sign. 

Id. Subsequently, on February 26, 1996, A. and his mother filed a 

complaint for primary physical custody of M. Id. M.’s prospective adoptive 

parents then filed a motion to intervene in the custody proceedings, which 

the trial court granted on the basis of their in loco parentis standing. Id. 

Following a custody hearing, the court awarded primary physical custody of 

M. to her prospective adoptive parents. Id. Father appealed the court’s 

determination and this Court affirmed. Id. Our Supreme Court then 

reversed this Court, vacated the order granting primary physical custody to 

M.’s prospective adoptive parents, and remanded the matter for a new 

custody hearing. Id. at 1229. The Court reasoned as follows.

Normally, a third party may challenge custody only through 

dependency proceedings. The Juvenile Act, which governs 

dependency proceedings, defines a dependent child, inter alia, 

as “A child who is without proper parental care or control, 

subsistence, education as required by law, or other care or 

control necessary for his physical, mental or emotional health, or 

morals.” 42 Pa.C.S. § 6302. In other words, in order for a third 

party to interfere in a natural parent’s custody of his child, the 

third party would have to show in a dependency proceeding that 

the child is not properly cared for. If the third party were able to 

prevail on that issue, then the third party could intervene in a 

custody proceeding. As Superior Court stated in Cardamone v. 

Elshoff, 442 Pa.Super. 263, 659 A.2d 575 (1995): “[U]nless the 

natural parents’ prima facie right to custody is successfully 

overcome via the dependency proceedings, this court cannot 

confer standing upon third parties to interfere with the parent 

child relationship.” 659 A.2d at 581. 

An exception to this rule is that where the third parties 

stand in loco parentis, i.e., where the third parties “assumed 

obligations incident to the parental relationship,” id., the third 

party may intervene in a custody proceeding. However, “a third 

party cannot place himself in loco parentis in defiance of the 
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parents’ wishes and the parent/child relationship.” Gradwell v. 

Strausser, 416 Pa.Super. 118, 610 A.2d 999, 1003 (1992).

The record in this case establishes that A 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 plain that [the prospective 

adoptive parents] 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.

Id. at 1228-29 (footnote omitted).

Appellees attempt to distinguish B.A. by citing In re C.M.S., 884 A.2d 

1284 (Pa. Super. 2005), appeal denied, 897 A.2d 1183 (Pa. 2006). In that 

case, the father, D.E.H., Jr., visited C.M.S. in the hospital on one occasion 

shortly after her birth, but otherwise made no effort to be involved in her 

life. Id. at 1285. Meanwhile, C.M.S.’s mother arranged for her adoption 

without D.E.H., Jr.’s, consent. Id. About a year later, C.M.S.’s prospective 

adoptive parents filed a petition to involuntary terminate D.E.H., Jr.’s, 

parental rights, which the trial court denied. Id. at 1285. The prospective 

adoptive parents appealed, and this Court reversed, concluding that the trial 

court abused its discretion by failing to terminate D.E.H., Jr.’s, parental 

rights pursuant to 23 Pa.C.S.A. § 2511(a)(1) and (6). Id. We then 

remanded the case for consideration of 23 Pa.C.S.A. § 2511(b). Id. at 

1286. After remand, the court terminated D.E.H., Jr.’s, parental rights, and 

he appealed. Id. D.E.H., Jr., challenged the prospective adoptive parents’ 

in loco parentis standing on the basis that he did not consent to their 

adoption of C.M.S. Id. at 1288-89. This Court concluded that D.E.H., Jr., 
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could no longer challenge standing, because we “implicitly determined” that 

the prospective adoptive parents had standing during the first appeal, and 

the prospective adoptive parents’ standing was now the law of the case.8 

Id. at 1288. In the alternative, this Court concluded that C.M.S.’s 

prospective adoptive parents had proper in loco parentis standing, because 

they assumed and discharged parental duties on behalf of C.M.S. for a year 

while D.E.H., Jr., did nothing. Id. at 1289-90. We explained that denying in 

loco parentis standing to the prospective adoptive parents “would require us 

to ignore not only the reality of this child’s life, but also [D.E.H., Jr.’s,] 

failure to establish any sort of bond with his newborn child or to provide in 

any way for her care.”9 Id. at 1289.

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8 This rationale was later called into question in In re Adoption of 

Z.S.H.G., 34 A.3d 1283, 1288 n.4 (Pa. Super. 2011), reargument denied

(Feb. 21, 2012).

9 We relied on McDonel v. Sohn, 762 A.2d 1101 (Pa. Super. 2000), appeal 

denied, 782 A.2d 547 (Pa. 2001). In McDonel, the appellant, Spangler, 

denied paternity and made little effort to be involved in the life of his 

daughter, C.S., for three and a half years. Id. at 1103. During that time, 

C.S. and her mother, Sohn, stayed frequently with C.S.’s aunt and uncle, the 

McDonels. Id. Sohn also executed a power of attorney, granting “in loco 

parentis powers” to the McDonels. Id. at 1105. Spangler eventually filed 

for partial physical custody of C.S., and visited with her one weekend per 

month. Id. at 1103. About a year and half later, Sohn committed suicide. 

Id. While Sohn was in the hospital on life support, the McDonels filed for 

custody. Id. At the conclusion of the custody proceedings, the trial court 

awarded primary physical custody and shared legal custody of C.S. to the 

McDonels. Id. at 1104. Spangler argued on appeal that the McDonels 

lacked in loco parentis standing, because he did not consent to their role in 

C.S.’s life. Id. at 1106. This Court rejected Spangler’s argument, reasoning 

(Footnote Continued Next Page)
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After review, we agree with Father that the facts of B.A. are 

essentially identical to the facts of this case, and we see no reasonable basis 

upon which to distinguish them. While the trial court concluded that Father 

gave his implied consent to Appellees’ in loco parentis standing, our research 

does not reveal that this Court, or our Supreme Court, has held that consent 

to in loco parentis standing can be implied. In C.M.S., this Court explained 

that D.E.H., Jr., demonstrated his consent by failing to be involved in 

C.M.S.’s life for a year. D.E.H., Jr.’s, consent was not implied; he acted in a 

manner consistent with consent. In contrast, the father in B.A., A., acted in 

a manner inconsistent with consent by filing for custody of M. less than two 

months after her birth. Here, Father also acted in a manner inconsistent 

with consent, by promptly informing BCS that he did not want Child to be 

adopted less than a month after being notified that she was residing with 

prospective adoptive parents, and by filing a custody complaint shortly 

thereafter. We therefore conclude that Father did not consent to Appellees 

attaining in loco parentis status with respect to Child, and that the trial court 

erred by denying Father’s preliminary objections. 

(Footnote Continued) _______________________

that a parent cannot claim that a party is acting in loco parentis in defiance 

of his or her wishes unless that parent’s actions “necessarily would conflict 

with a finding that a third party achieved in loco parentis status. Here, 

Spangler initially denied paternity, had little contact with C.S., and no 

contact with the McDonels and so could not have been an obstruction to the 

McDonels’ developing relationship with C.S.” Id. (footnote omitted).
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In reaching this conclusion, we stress once again that Father has a 

fundamental constitutional right to care for Child, and that he is presumed to 

be a fit parent. Hiller, 904 A.2d at 885; D.P., 146 A.3d at 214. If a parent 

is unfit, this Commonwealth has a well-established system for adjudicating 

children dependent, terminating parental rights, and placing children in preadoptive homes. However, these remedies are available only if a parent is 

provided essential due process protections, including notice, a hearing, and 

proof by clear and convincing evidence. Here, we note with disapproval, 

Father has been deprived of Child without any evidence in the record that he 

is an unfit parent, and without the benefit of due process protections.

BCS’s decision to place Child for adoption without Father’s consent is 

particularly troubling. Mother first contacted BCS in March 2015. BCS then 

made no effort at all to contact Father for approximately four months, until 

July 29, 2015. By the time BCS sent letters to Father on September 16, 

2015, Child was already residing with Appellees. Because of BCS’s inaction, 

Father has now spent well over a year fighting for custody of Child. In 

addition, Appellees have spent over a year and a half hoping to adopt Child, 

only to have their hopes dashed by this decision. While we are sympathetic 

to Appellees, who have no doubt expended immense time and effort caring 

for Child and ensuring her well-being during this difficult process, our 

sympathies must give way to Father’s fundamental constitutional rights.

Based on the foregoing, we conclude that the trial court erred by 

denying Father’s preliminary objections and granting Appellees in loco 
J-A03022-17

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parentis standing on an implied basis with respect to Child. We therefore 

vacate the August 8, 2016 order, and we remand this matter to the court to 

enter an order granting Father’s preliminary objections, and to conduct 

further custody proceedings consistent with this opinion. 10 

Order vacated. Case remanded for further proceedings consistent with 

this Opinion. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2017

____________________________________________

10 The remaining parties in this matter are Father and Mother. Mother did 

not file a separate brief in connection with this appeal, but joined the brief 

filed by Appellees. It is not clear what her position is in terms of sharing 

custody of Child with Father. When addressing custody on remand, the trial 

court should be sure to consider Mother’s rights.