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acknowledging that parents have a fundamental right to direct the care, custody, and control of their children
Summary of this case from Allegheny Cnty. Prison Emps. Indep. Union v. Allegheny Cnty.Opinion
No. 13 MAP 2023
10-18-2023
J.C.D., III and A.M.D., Appellees v. A.L.R. and T.A.D.-R., Appellants
Kathryn Irene Nonas-Hunter, Esq., Ream, Carr, Markey, Woloshin & Hunter, LLP, for Appellant Paul Byron Royer, Esq., Roberto D. Ugarte, Esq., Mooney Law, Appellee
Kathryn Irene Nonas-Hunter, Esq., Ream, Carr, Markey, Woloshin & Hunter, LLP, for Appellant
Paul Byron Royer, Esq., Roberto D. Ugarte, Esq., Mooney Law, Appellee
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE BROBSON
In this discretionary appeal, we must determine whether an order determining that grandparents have standing under Section 5325(3) of the Domestic Relations Code, 23 Pa. C.S. § 5325(3), to file and pursue an action for partial physical custody of their grandchildren is a collateral order appealable as of right under Pennsylvania Rule of Appellate Procedure 313, Pa.R.A.P. 313 (Rule 313 ). For the reasons that follow, we hold that such an order is not a collateral order, and, therefore, we affirm the Superior Court's order quashing this appeal.
Section 5325(3) of the Domestic Relations Code, titled "Standing for partial physical custody and supervised physical custody," provides, in relevant part: "[G]randparents ... may file an action ... for partial physical custody ... when the child has, for a period of at least 12 consecutive months, resided with the grandparent ..., excluding brief temporary absences of the child from the home, and is removed from the home by the parents .... "
This matter arises out of an action for custody of E.J.R. and A.L.R. (collectively, the Children). In August 2017, A.L.R. (Father) and T.A.D-R. (Mother) (collectively, Parents) began residing with J.C.D., III, and A.M.D. (collectively, Grandparents), Mother's parents, at their home in York County, Pennsylvania. While Parents resided at Grandparents’ home, the Children were born to Parents: E.J.R. in April 2019, and A.L.R. in March 2021. Parents and the Children continued to reside with Grandparents until May 2, 2022, when, following a disagreement, Parents moved out of Grandparents’ home with the Children.
Thereafter, on July 20, 2022, Grandparents filed a complaint in custody with the York County Court of Common Pleas (trial court), seeking shared legal and partial physical custody of the Children. In response thereto, Parents filed preliminary objections, alleging, inter alia , that Grandparents lacked standing to pursue an action for custody of the Children. Following a hearing, the trial court found: (1) Parents and the Children lived in the same home as Grandparents for approximately five years; (2) during that time, Grandparents were not raising the Children and did not stand in loco parentis to the Children but, rather, were helping Parents with the Children as grandparents and as people sharing living quarters typically do; and (3) Grandparents filed their custody complaint within six months of when Parents removed the Children from Grandparents’ home. Based on these factual findings, the trial court entered an order (docketed on September 23, 2022), concluding that Grandparents did not have standing to file and pursue an action for shared legal and partial physical custody of the Children under Section 5324 of the Domestic Relations Code, 23 Pa. C.S. § 5324. After conducting some research, however, the trial court entered a second order (Standing Order) (docketed on October 6, 2022), concluding that Grandparents did have standing to file and pursue an action for partial physical custody of the Children under Section 5325(3) of the Domestic Relations Code. In its Standing Order, the trial court specifically noted that it was "remind[ing] everyone that [its Standing Order was] just a decision on standing, and not a decision on what if any custodial rights ... [G]randparents should have as that will be determined at the conciliation conference, and if not settled there, then on to a trial." (Reproduced Record (R.R.) at 84a.)
Section 5324 of the Domestic Relations Code, titled "Standing for any form of physical custody or legal custody," provides, in pertinent part:
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
....
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
....
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.
Parents appealed the trial court's Standing Order to the Superior Court. Recognizing that there were outstanding custody claims pending before the trial court and that the trial court's Standing Order, therefore, did not appear to be final or otherwise immediately appealable, the Superior Court directed Parents to show cause as to why their appeal should not be quashed. In response, Parents argued that they are married, that they have always been an intact family with the Children, that they have made a joint determination that it is not in the Children's best interests to have a relationship with Grandparents, and that they do not wish for Grandparents to have any custody rights to the Children. Parents conceded, however, that the trial court's Standing Order was not a final order. Instead, Parents maintained that the trial court's Standing Order was appealable as of right under the collateral order doctrine. More specifically, Parents maintained that the trial court's Standing Order "meets the requirements of the collateral order doctrine because it is collateral to the main issue of child custody[,] ... 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." (R.R. at 97a (internal quotation marks omitted).) The Superior Court disagreed, however, and, by per curiam order dated November 14, 2022, quashed Parents’ appeal as interlocutory, concluding that Parents did not present a legal basis for the Superior Court's jurisdiction.
Subsequent thereto, Parents filed a petition for allowance of appeal, seeking this Court's discretionary review, which we granted limited to the following issue, as stated by Parents:
Whether the Pennsylvania Supreme Court should exercise judicial discretion and grant an appeal to [Parents], as the trial court's order was appealable as of right under [ Rule 313 ] as a collateral [order]?
J.C.D., III v. A.L.R. , 292 A.3d 553 (Pa. 2023) (per curiam) (some alterations in original). The question of whether an order is collateral and appealable as of right under Rule 313 is a question of law. K.C. v. L.A. , 633 Pa. 722, 128 A.3d 774, 778 (2015). Consequently, our standard of review is de novo and our scope of review is plenary. Id.
As a general rule, "an appellate court's jurisdiction extends only to review of final orders." Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 855 (2018) ; see also Pa.R.A.P. 341(a) ("[A]n appeal may be taken as of right from any final order of a ... trial court."). A final order is an order that "disposes of all claims and of all parties" or "is entered as a final order" pursuant to a determination of finality by a trial court or other government unit. Pa.R.A.P. 341(b)(1), (3). As we have previously stated, "[t]he final order rule reflects the long-held limitation on review by both federal and state appellate courts[,]" and "[c]onsidering issues only after a final order maintains distinctions between trial and appellate review, respects the traditional role of the trial judge, and promotes formality, completeness, and efficiency." Shearer , 177 A.3d at 855. Nonetheless, the collateral order doctrine, which has been codified in Rule 313, "permit[s] immediate appellate review of certain [non-final] collateral orders." Id. at 856 ; see also Rae v. Pa. Funeral Dirs. Ass'n , 602 Pa. 65, 977 A.2d 1121, 1125 (2009). Rule 313 provides:
(a) General Rule. An appeal may be taken as of right from a collateral order of a trial court or other government unit.
(b) Definition. A collateral order is an order[: (1)] separable from and collateral to the main cause of action[; (2)] where the right involved is too important to be denied review[;] and [(3)] 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. As a means to reinforce and support the final order rule, however, this Court has concluded that the collateral order doctrine must be narrowly construed, and, before application thereof, "every one of its three prongs [must] be clearly present," especially considering that a party may seek permission to appeal an interlocutory—i.e. , non-final—order pursuant to Pennsylvania Rule of Appellate Procedure 312, Pa.R.A.P. 312. Rae , 977 A.2d at 1126 (citing Melvin v. Doe , 575 Pa. 264, 836 A.2d 42, 47 (2003), and Geniviva v. Frisk , 555 Pa. 589, 725 A.2d 1209, 1214 & n.5 (1999) ); Shearer , 177 A.3d at 858. Indeed, we have explained that "[w]e construe the collateral order doctrine narrowly so as to avoid ‘undue corrosion of the final order rule’ and to prevent delay resulting from ‘piecemeal review of trial court decisions.’ " K.C. , 128 A.3d at 778 (internal citation omitted) (quoting Melvin , 836 A.2d at 47, and Pridgen v. Parker Hannifin Corp. , 588 Pa. 405, 905 A.2d 422, 427 (2006) ).
Pennsylvania Rule of Appellate Procedure 312 provides: "An appeal from an interlocutory order may be taken by permission pursuant to Chapter 13 (interlocutory appeals by permission)." More specifically, with the permission of the relevant appellate court, a litigant may bring an appeal if the trial court or other government unit certifies in its order "that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter." 42 Pa. C.S. § 702 ; see also Pa.R.A.P. 1311(a)(1) ("An appeal may be taken by permission from an interlocutory order ... certified under 42 Pa. C.S. § 702(b) or for which certification pursuant to 42 Pa. C.S. § 702(b) was denied .... ").
With these basic principles in mind, we turn to the application of the collateral order doctrine to the facts presented in this appeal. As set forth more fully above, the collateral order doctrine "permits an appeal as of right from a non-final collateral order if the order satisfies the three requirements set forth in Rule 313(b) —separability, importance, and irreparability." Shearer , 177 A.3d at 858. Here, Grandparents concede in their brief to this Court that Parents have satisfied the first two prongs of the collateral order doctrine as set forth in Rule 313(b). We agree. With respect to the first prong—i.e. , separability,—"an order is separable from the main cause of action if it is ‘entirely distinct from the underlying issue in the case’ and if ‘it can be resolved without an analysis of the merits of the underlying dispute.’ " K.C. , 128 A.3d at 778 (quoting Commonwealth v. Blystone , 632 Pa. 260, 119 A.3d 306, 312 (2015) ). We previously held that a lower court's order denying intervention in a custody action for lack of standing is separable from the main cause of action because "the issue of whether [the a]ppellants are among the individuals who have standing to seek custody ... is a conceptually distinct legal question which has no bearing on the central issue within the custody action—who is entitled to physical and legal custody of [the c]hild in light of her best interests." Id. at 779. Consequently, as this matter involves whether Grandparents have standing to file and pursue an action for partial physical custody of the Children under Section 5325(3) of the Domestic Relations Code, an issue that is separate and distinct from the issue of whether Grandparents are entitled to partial physical custody of the Children, we conclude that Parents have satisfied the separability prong of the collateral order doctrine.
At the time of oral argument before this Court, Grandparents’ counsel indicated that, while he initially conceded that Parents had satisfied the separability prong of the collateral order doctrine, his position had changed, given Parents’ counsel's indication that the standing issue was not a separate legal determination and, instead, was related to the underlying facts of this case.
With respect to the second prong of the collateral order doctrine, "a right is important if ‘the interests that would go unprotected without immediate appeal are significant relative to the efficiency interests served by the final order rule.’ " Id. at 779 (quoting Commonwealth v. Williams , 624 Pa. 405, 86 A.3d 771, 782 (2014) ). More particularly, "the rights involved must implicate more than just the individual parties in the matter[ ] and, instead, must be ‘deeply rooted in public policy going beyond the particular litigation at hand.’ " Id. (quoting Blystone , 119 A.3d at 312 ). We have explained that, while a "claimed right to standing to intervene" in a custody proceeding "may, at first blush, appear to implicate only the individual parties involved, this right has important policy implications extending beyond [each] particular case, as the [Commonwealth] has a ‘longstanding interest in protecting the health and emotional welfare of children,’ " and decisions relative to who has "standing to participate in a child custody action directly impact the children involved in such actions." Id. (quoting Hiller v. Fausey , 588 Pa. 342, 904 A.2d 875, 886 (2006), cert. denied , 549 U.S. 1304, 127 S.Ct. 1876, 167 L.Ed.2d 363 (2007) ). We have further explained that, "in the context of child custody proceedings, the [Commonwealth] has a ‘paramount concern’ in ‘the best interest and permanent welfare of the child[ ]’ and has deemed all other considerations ‘subordinate to the child's physical, intellectual, moral and spiritual well-being.’ " Id. (quoting In re Davis , 502 Pa. 110, 465 A.2d 614, 618 (1983) ). For these reasons, we previously held that the Commonwealth's "paramount interest in the welfare of children and, as a result, in identifying the parties who may participate in child custody proceedings, demonstrates that [a] claimed right to [standing to] intervene [in a custody proceeding] satisfies the importance prong of the collateral order doctrine." Id. at 780. As a result, given that this matter involves the issue of whether Grandparents have a right—i.e. , standing—to file and pursue an action for partial physical custody of the Children under Section 5325(3) of the Domestic Relations Code, we conclude that Parents have satisfied the importance prong of the collateral order doctrine.
With the first two prongs so easily satisfied, our analysis focuses on the third prong of the collateral order doctrine—i.e. , irreparability. To satisfy the irreparability prong, "the matter must effectively be unreviewable on appeal from final judgment." Commonwealth v. Wells , 553 Pa. 424, 719 A.2d 729, 730 (1998). Simply put, there is nothing about the present case that would make the trial court's Standing Order unreviewable on appeal from a final judgment in the underlying custody proceedings. In the event that the trial court, following a custody hearing, were to award some form of custody of the Children to Grandparents, Parents could at that time appeal both the trial court's Standing Order and the trial court's final custody order to the Superior Court. While there may be some delay with obtaining appellate review of the trial court's Standing Order, Parents’ right to appeal therefrom will not be irreparably lost if an immediate appeal is not permitted. For these reasons, we conclude that Parents have failed to satisfy the irreparability prong of the collateral order doctrine.
Parents attempt to avoid this conclusion for several reasons. First, Parents direct our attention to our prior decision in K.C. In K.C. , we considered, relative to the irreparability prong, whether the appellants’ right to appeal from an order denying their petition to intervene in a child custody action on the basis of a lack of standing would be irreparably lost if they were not permitted to appeal immediately therefrom. K.C. , 128 A.3d at 775-76, 780-81. Ultimately, this Court concluded that, because In re Barnes Foundation , 582 Pa. 370, 871 A.2d 792 (2005) ( Barnes ), "unequivocally requires any party who was denied intervention and who satisfies the requirements of Rule 313 to appeal from the order denying intervention within 30 days of its entry or lose the right to appeal the order entirely, [the a]ppellants’ right to appeal from the order denying intervention in the instant case will be manifestly lost if they are not permitted to appeal the order." Id. at 780. K.C. ’s reasoning and analysis with respect to the irreparability of the collateral order doctrine, however, has no applicability to the present matter. Here, Parents are not seeking to appeal from an order denying them the right to intervene in the underlying child custody action for lack of standing; rather, Parents are the parties against whom Grandparents filed their action for partial physical custody of the Children and are seeking to appeal from an order that determined that Grandparents have standing to file and pursue the custody action. Additionally, there is nothing about the trial court's Standing Order that requires that it be appealed within 30 days of the entry thereof or the right to appeal therefrom would be lost. In fact, as stated above, Parents may appeal the trial court's Standing Order once a final custody order has been entered.
In Barnes , the appellant sought to intervene in a matter involving the restructuring of a charitable trust, which the orphans’ court denied. See Barnes , 871 A.2d at 793. The appellant did not appeal the orphans’ court's order denying his request to intervene and did not otherwise participate in the proceedings before the orphans’ court; instead, the appellant filed an appeal from the orphans’ court's final order. Id. This Court, exercising its extraordinary jurisdiction, quashed the appellant's appeal because he had failed to obtain intervenor status and, therefore, he was not a party to the underlying action. Id. at 795. In so doing, this Court reasoned that "a common pleas court's order denying intervention is one type of order which must be appealed within thirty days of its entry under [Pennsylvania] Rule of Appellate Procedure 903, or not at all, precisely because the failure to attain intervenor status forecloses a later appeal." Id. at 794.
In K.C. , this Court acknowledged that, "[w]hile Barnes did not involve a child custody action, its language is broad and applies to any ‘common pleas court's order denying intervention.’ " K.C. , 128 A.3d at 780 (quoting Barnes , 871 A.2d at 794 ). As a result, this Court concluded that Barnes applied to the circumstances presented in that case:
[T]he rationale behind requiring the immediate appeal of a denial of intervention in Barnes —namely, the risk of interference with subsequent trial proceedings—is even more pronounced in the context of a child custody action, given the significant interests at stake. We, therefore, find that Barnes applies to the trial court's order in the instant case.
While they acknowledge that K.C. is distinguishable from this matter relative to the third prong of the collateral order doctrine, Parents, nonetheless, maintain that their claim will be irreparably lost if this Court postpones appellate review of the trial court's Standing Order until the entry of a final custody order because "[s]tanding in child custody cases is a matter of constitutional significance;" more specifically, Parents assert a constitutional right to raise the Children as they deem appropriate free from interference of third parties, in this case Grandparents. (Parents’ Br. at 16 (citing Hiller , 904 A.2d at 885 ("[T]he 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.")).) Parents contend further that "[a]llowing third parties to seek custody of a child burdens" that constitutional right. (Id. (citing D.P. v. G.J.P. , 636 Pa. 574, 146 A.3d 204, 210, 213 (2016) ).) Parents also point out that, in D.P. , this Court "emphasized the importance of permitting parents to challenge standing in child custody cases[ ] in order to protect those rights." (Id. )
While Parents cite D.P. in support of, inter alia , their contention that it is important to permit parents to challenge standing in child custody cases in order to protect their fundamental right to parent their children, Parents seemingly ignore that, in D.P. , we discussed the protection of parental rights not in the context of an appeal from a trial court's order concluding that a grandparent has standing to file and pursue an action for partial physical custody of the children but, rather, in the context of bifurcation of the issue of standing from any merits determination at the trial court level. See D.P. , 146 A.3d at 213.
We certainly acknowledge that Parents have a fundamental right to direct the care, custody, and control of the Children. See Hiller , 904 A.2d at 885. We disagree, however, that the existence of that fundamental right is in any way applicable to the issue of whether Parents’ challenge to the trial court's Standing Order will be irreparably lost if appellate review thereof is postponed until a final custody order is entered in this matter. A determination of whether appellate review of a claim will be irreparably lost does not turn on the importance of the right allegedly implicated. As explained more fully above, the collateral order doctrine has three, separate prongs—separability, importance, and irreparability—and each of those prongs must be clearly present before a court can determine that an order is collateral and immediately appealable as of right under Rule 313. See Pa.R.A.P. 313 ; Rae , 977 A.2d at 1126 (citing Melvin , 836 A.2d at 47, and Geniviva , 725 A.2d at 1214 ); Shearer , 177 A.3d at 858. We, therefore, reject Parents’ invitation to blur the lines between those prongs and consider the importance of the alleged right under both the importance and irreparability prongs and conclude, as Parents would have us do, that the irreparability prong is satisfied any time the underlying litigation involves a fundamental or constitutional right.
Parents also go to great lengths to distinguish this case from Beltran v. Piersody , 748 A.2d 715 (Pa. Super. 2000), a case cited by the Superior Court in its quashal order. Parents suggest that in this case, unlike in Beltran : (1) Grandparents have no parental claim to the Children, legal or otherwise; (2) Parents, who are married and are an intact family with the Children, have made the joint determination that it is not in the Children's best interests to have a relationship with Grandparents; and (3) there is no protracted litigation involving custody of the Children. In Beltran , the Superior Court considered whether a trial court's order granting intervenor status to a child's biological father in an ongoing custody action was immediately appealable. Beltran , 748 A.2d at 716-18. Recognizing, inter alia , that the order granting the child's biological father intervenor status was not a final order and that the appellant did not seek permission to file an interlocutory appeal pursuant to Pennsylvania Rule of Appellate Procedure 312, the Superior Court explained that immediate review would only be warranted if the order qualified as a collateral order under Rule 313. Id. at 717-18. Ultimately, the Superior Court concluded that the order granting the child's biological father intervenor status in the underlying custody action did not meet the requirements for a collateral order under Rule 313 and, therefore, quashed the appellant's appeal. Id. at 716, 719. In so doing, the Superior Court reasoned that the appellant had failed to satisfy both the separability and the irreparability prongs of the collateral order doctrine because the intervention of the child's biological father in the custody action had "the potential to resolve issues related to custody, support, and visitation" and "the denial of immediate review of the [intervention] order will not cause [the appellant's] claim to be irreparably lost, as he can seek review in an appeal from a final custody order." Id. at 719.
Initially, we note that Beltran , although decided 15 years prior, is essentially the converse of K.C. —i.e. , pursuant to K.C. , an order denying intervenor status in a child custody matter is a collateral order that is immediately appealable as of right pursuant to Rule 313, whereas, pursuant to Beltran , an order granting intervenor status in a child custody matter does not meet the requirements for a collateral order under Rule 313. See K.C. , 128 A.3d at 781 ; Beltran , 748 A.2d at 719. Beltran , like K.C. , however, does not render any support to Parents’ position in this matter. Contrary to Parents’ suggestions, Beltran is not distinguishable simply because the facts of that case are markedly different from the facts presented here. Indeed, while the underlying facts may have been relevant to the Superior Court's analysis of the separability prong—i.e. , the intervenor was the child's biological father—the Superior Court did not rely upon those facts in its analysis of the irreparability prong. The sole question relative to irreparability was whether the appellant in Beltran could appeal the trial court's intervention order once a final custody order had been entered, which the Superior Court concluded he could. That situation is the exact situation presented here: Parents can appeal the trial court's Standing Order once the trial court enters a final custody order.
Overall, Parents maintain that they "have a fundamental constitutional right to parent [the C]hildren, which includes [the] right to be free of custody litigation involving third parties." (Parents’ Br. at 20.) Parents contend that the quashal of their appeal from the trial court's Standing Order will result in them "being subjected to extensive litigation involving [Grandparents], including a custody conciliation conference ..., a lengthy custody hearing[,] and a second appeal on the exact issue [they] now seek to raise." (Id. ) Parents further posit that, "[n]ot only would [they] incur a substantial financial burden as a result of this litigation, but they also could lose months of time as the custody hearing and appeals process drags on." (Id. ) Lastly, Parents suggest that, "[u]nder the unique circumstances of this case, a court could not hope to fully vindicate or restore [their] currently undisturbed constitutional right to parent [the C]hildren by the time of a second appeal." (Id. )
In making these arguments, however, Parents seemingly ignore two important points. First, the right that Parents advance is not, as they would like us to believe, the fundamental right to parent the Children free from interference from third parties. As it stands presently, there is no interim or final custody order in place that is at all interfering with Parents’ fundamental right to parent the Children. Rather, Parents appear to claim some right to be free from custody litigation—and the financial and emotional burden associated therewith—brought against them by third parties. While not directly cited in their brief to this Court, Parents seem to rely on the United States Supreme Court's decision in Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), to support their proposition in this regard. Based upon our reading, however, Troxel does not establish that Parents have a right to be free from custody litigation brought against them by third parties. Troxel involved an as applied challenge to a state statute that granted broad-sweeping rights to "any person" to petition for visitation of a child "at any time," whereas here, Section 5325(3) of the Domestic Relations Code grants standing to a child's grandparents under very limited circumstances. See Troxel , 530 U.S. at 60, 65, 120 S.Ct. 2054 (quoting Wash. Rev. Code § 26.10.160(3) ). Additionally, in Troxel , the United States Supreme Court addressed the burdens of custody litigation only in the context of explaining why a remand was unnecessary and not in the context of whether the state statute, or more specifically the custody litigation brought thereunder, burdened the parent's fundamental right to parent her children. See id. at 75, 120 S.Ct. 2054. Moreover, even if we were to assume that Troxel establishes that Parents have a right to be free from custody litigation brought against them by third parties, it is not a right that warrants this Court's consideration under these circumstances because: (1) Section 5325(3) of the Domestic Relations Code is limited and only grants certain grandparents the right to seek partial physical custody of their grandchildren; and (2) the constitutionality of Section 5325(3) of the Domestic Relations Code is not an issue before this Court in this appeal, given that we granted review to consider the discrete issue of whether the trial court's Standing Order was appealable as of right under Rule 313 as a collateral order.
In Troxel , the United States Supreme Court considered whether a Washington statute, which permitted "[a]ny person" to petition for visitation rights of a child "at any time" and authorized the court to grant visitation rights whenever "visitation may serve the best interest of the child," as applied to a parent and her family, violated the due process clause of the Fourteenth Amendment to the United States Constitution by interfering with that parent's fundamental right to direct the care, custody, and control of her children. Troxel , 530 U.S. at 60, 64-74, 120 S.Ct. 2054 (quoting Wash. Rev. Code § 26.10.160(3) ). Ultimately, the Supreme Court held that the application of the Washington statute to the parent and her family "violated her due process right to make decisions concerning the care, custody, and control of her daughters." Id. at 74, 120 S.Ct. 2054. In discussing the reasons why a remand to the Washington Supreme Court for further proceedings was not necessary, the Supreme Court explained:
[T]he burden of litigating a domestic relations proceeding can itself be "so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated." In this case, the litigation costs incurred by [the parent] on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. We should say so now, without forcing the parties into additional litigation that would further burden [the parent's] parental right.
Id. at 75, 120 S.Ct. 2054 (citation omitted).
Second, Parents could have sought permission to file an interlocutory appeal under Pennsylvania Rule of Appellate Procedure 312. To that end, the concerns that Parents raise now, which we conclude fail to satisfy the collateral order doctrine, could have factored into a Superior Court determination of whether to grant permission to appeal the trial court's Standing Order as an interlocutory order. In other words, Parents could have sought certification from the trial court that its Standing Order involved a controlling question of law—i.e. , whether Grandparents have standing to file and pursue an action for partial physical custody of the Children—over which there was substantial disagreement between the parties and that an immediate appeal thereof could have materially advanced the ultimate termination of the custody action. See Pa.R.A.P. 1311(a)(1) ; 42 Pa. C.S. § 702(b). With that certification, or even a denial of that certification, Parents could have then sought permission from the Superior Court to appeal the trial court's Standing Order as an interlocutory order. See Pa.R.A.P. 1311(a)(1) ; 42 Pa. C.S. § 702(b).
In sum, we conclude that Parents have failed to satisfy the irreparability prong of the collateral order doctrine, and, therefore, the trial court's Standing Order does not meet the requirements of a collateral order appealable as of right under Rule 313. In so doing, we emphasize that the collateral order doctrine is a narrow exception to the final order rule that must be narrowly construed. See Rae , 977 A.2d at 1126 (citing Melvin , 836 A.2d at 47, and Geniviva , 725 A.2d at 1214 ); Shearer , 177 A.3d at 858. Accordingly, we affirm the Superior Court's order.
We acknowledge that our decision today may be inconsistent with the Superior Court's prior decision in K.W. v. S.L. , 157 A.3d 498 (Pa. Super. 2017). In K.W. , a child's father (Father) appealed a trial court order granting the child's prospective adoptive parents (Appellees) in loco parentis standing to pursue custody of the child. See K.W. , 157 A.3d at 499. Before addressing the merits of Father's appeal, the Superior Court considered whether the trial court's order was properly appealable under the collateral order doctrine. Id. at 501-04. The Superior Court concluded that, with respect to the separability and importance prongs of the collateral order doctrine, the reasoning advanced by this Court in K.C. applied with equal force to the situation before it. Id. at 502. Although it found K.C. distinguishable with respect to the irreparability prong, the Superior Court, nonetheless, concluded that Father's claim would be irreparably lost if it postponed review of the trial court's order until a final order had been issued. Id. at 502-04. In so doing, the Superior Court reasoned:
Father has a fundamental constitutional right to parent [the c]hild. 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 [the c]hild as the custody hearing and appeals process drags on. Under the unique circumstances of this case, where Father was deprived of [the c]hild by a private adoption agency without the benefit of a hearing or other due process protections, this [c]ourt could not hope to fully vindicate or restore Father's rights by the time of his second appeal.
Id. at 504. Consequently, the Superior Court concluded that the trial court's order granting in loco parentis standing to Appellees to pursue custody of the child satisfied all three prongs of the collateral order doctrine. Id.
While not cited in their brief to this Court, it is readily apparent that Parents derive at least some of their arguments relative to the irreparability prong from the Superior Court's rationale in K.W. (See Parents’ Br. at 20.); see also supra at 434–35 (summarizing Parents’ arguments). Given, however, that the parties have not addressed the applicability of K.W. or its continued viability in their briefs to this Court, we see no reason to disapprove of K.W. at this time.
Justices Dougherty, Wecht and Mundy join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Todd files a dissenting opinion in which Justice Donohue joins.
JUSTICE WECHT, concurring I.
The Supreme Court of the United States has long recognized Americans’ fundamental right to raise their children as they see fit. A century ago, at the height of the Lochner era, that Court announced that the Fourteenth Amendment's due process clause "denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
The Lochner era was a period in the United States Supreme Court's history — taking its name from the decision in Lochner v. New York , 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) — that extended into the 1930s and was characterized by the Court's invocation of the due process clause to strike down laws regulating economic affairs. See Bert Co. v. Turk , ––– Pa. ––––, 298 A.3d 44, 88-89 (2023) (Wecht, J., concurring).
Meyer v. Nebraska , 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). See also Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary , 268 U.S. 510, 534–35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (recognizing "the liberty of parents and guardians to direct the upbringing and education of children under their control"); Parham v. J. R. , 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. ... The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.") (internal citations and quotation marks omitted).
More recently, in Troxel v. Granville , the United States Supreme Court reiterated that the due process clause of the Fourteenth Amendment "includes a substantive component" that protects "the interest of parents in the care, custody, and control of their children." In Troxel , the paternal grandparents, whose son had died, sought visitation with their grandchildren. They sued the children's mother under a Washington statute which stated broadly that any person could petition for visitation rights at any time and which authorized the trial court to grant visitation to such persons when visitation would serve the best interests of the child. The Supreme Court of Washington found the statute to be facially unconstitutional in part because the statute interfered with a parent's fundamental right in the care, custody, and control of the parent's children. On appeal, the United States Supreme Court agreed that, as applied to the parent in the case, the Washington statute "unconstitutionally infringe[d] on that fundamental parental right." "So long as a parent adequately cares for his or her children (i.e. is fit)," the Court stated, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." The Court announced that "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made."
530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The lead opinion in Troxel was authored by Justice O'Connor and was joined by three other Justices. Justice Souter concurred in the result, agreeing that the Fourteenth Amendment protects a parent's interest in raising one's children. Id. at 77, 120 S.Ct. 2054. Justice Stevens and Justice Kennedy dissented, but they nonetheless identified the Fourteenth Amendment as the source of the liberty interest. Id. at 86-87, 95, 120 S.Ct. 2054. Hence, a majority of Justices held that the rights of parents in the "care, custody, and control of their children" are grounded in substantive due process.
Id. at 63, 120 S.Ct. 2054.
Id. at 67, 120 S.Ct. 2054.
Id. at 68-69, 120 S.Ct. 2054.
Id. at 72-73, 120 S.Ct. 2054.
Soon after Troxel , this Court decided Hiller v. Fausey . In that case, the maternal grandmother, whose daughter had died, sought partial custody of her grandson by suing the child's father pursuant to 23 Pa.C.S. § 5311. The father challenged the grant of partial custody as a violation of his substantive due process rights guaranteed by the Fourteenth Amendment. Reviewing Troxel , this Court noted that a majority of the United States Supreme Court had determined that there was "a constitutionally protected right of parents to make decisions concerning the care, custody, and control of their children," a right that includes deciding the appropriateness of visitation with third parties, and had concluded that "fit parents are entitled to a presumption that they act in the best interests of their children." This Court held that, Troxel notwithstanding, the Pennsylvania statute satisfied strict scrutiny and was therefore constitutional because it sufficiently protected parents’ fundamental substantive due process right to raise their children.
588 Pa. 342, 904 A.2d 875 (2006).
23 Pa.C.S.§ 5311 (repealed) stated:
If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.
Id. at 879.
Id. at 883.
Id. at 890.
As I recently noted elsewhere, and in more detail, I have serious doubts about the jurisprudential wisdom of laboring creatively to mine unenumerated rights in the ore of the Fourteenth Amendment's Due Process Clause, a clause that safeguards procedural rights but does not, by its terms, manufacture substantive liberties. Instead, it is the Ninth Amendment, which recognizes that the enumeration of certain rights in the Constitution should not be construed to deny or disparage other rights retained by the people, and the Fourteenth Amendment's Privileges or Immunities Clause, which (properly read) also protects unenumerated rights, that serve as far more solid foundations for the protection of our liberties. Unfortunately, these important domains of constitutional law largely have been ignored and neglected due to the confusing muddle of the United States Supreme Court's substantive due process jurisprudence. Judges and lawyers should explore the Ninth Amendment and the Privileges or Immunities Clause so that those provisions may ripen over time into a proper jurisprudential foundation for protection of important but unenumerated rights, including the right of parents to raise their children.
See Bert Co. , 298 A.3d at 86-95 (Wecht, J., concurring).
Id. at 95-102.
It is puzzling as well that few turn to the Pennsylvania Constitution as a source of protection for our fundamental rights and liberties. Instead, the universal default continues to be reflexive invocation of federal "substantive due process rights." In Pennsylvania cases involving the right to parent, such as Hiller and D.P. v. G.J.P. , neither the litigants nor this Court cited the Pennsylvania Constitution as a source of the right, relying instead upon the Fourteenth Amendment. To some extent, this is understandable, inasmuch as Pennsylvania's Constitution does not contain the due process provision upon which Troxel relied. Instead, Article 1, Section 1 of our Commonwealth's charter has been repeatedly (but largely unthinkingly) crammed into an interpretive equivalency with the Due Process Clause of the Fourteenth Amendment, notwithstanding the lack of any textual basis for equalizing the procedural rights of the latter with the obviously substantive rights of the former. With respect to vindication of process rights (including, inter alia , protection of "remedy by due course of law"), our law should more properly refer to Article I, Section 11 of our Pennsylvania Constitution. But that is a matter for another day.
636 Pa. 574, 146 A.3d 204 (2016).
"All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Pa. Const . art. I, § 1.
See , e.g. , Shoul v. Pa., Dep't of Transp., Bureau of Driver Licensing , 643 Pa. 302, 173 A.3d 669, 676 (Pa. 2017) (citing Article 1, Section 1 as the state counterpart to the due process clause of the Fourteenth Amendment); Khan v. State Bd. of Auctioneer Exam'rs , 577 Pa. 166, 842 A.2d 936, 946 (2004) (defining substantive due process as an "esoteric concept interwoven within our judicial framework to guarantee fundamental fairness and substantial justice," and citing Article 1, Section 1 as the source of protection for the interest in practicing one's profession); Nixon v. Commonwealth , 576 Pa. 385, 839 A.2d 277, 286 (2003) ("[Article 1, Section 1 ], like the due process clause in the Fourteenth Amendment of the United States Constitution, guarantees persons in this Commonwealth certain inalienable rights.").
As a result of the prevailing jurisprudential paradigm, when claims alleging deprivation of a constitutionally protected interest are brought under the Pennsylvania Constitution, this Court has analyzed them under a two-part rubric: strict scrutiny when a fundamental interest is at issue, and rational basis review when a "protected but not fundamental right" is impacted. , Because the protection of fundamental rights under the Pennsylvania Constitution has not yet been well-developed or properly articulated, there is no exhaustive list of those rights that warrant strict scrutiny. However, in the Nixon case, this Court did identify the right to privacy, the right to marry, and the right to procreate as examples. It would be a small step rather than a leap to conclude that the right to raise one's children and to direct the care, control, and custody of those children is among those fundamental rights protected by the Pennsylvania Constitution. There's no need to insist on hammering the federal "due process" moniker onto these rights, which are among the "liberty" and "happiness" rights recognized as "inherent rights of mankind" by our own Article I, Section 1 constitutional text.
Germantown Cab Co. v. Philadelphia Parking Authority , 651 Pa. 604, 206 A.3d 1030, 1042 (2019).
I leave to another day further discussion of my disagreement with the peculiar development and application of the rational basis test in Pennsylvania jurisprudence. See Shoul , 173 A.3d at 688-94 (Wecht, J., concurring).
Nixon v. Commonwealth , 576 Pa. 385, 839 A.2d 277, 287 (2003).
II.
As the Majority acknowledges, while this case involves the assertion of a constitutional right, no one has directly challenged the constitutionality of the statute. In D.P. , this Court weighed the constitutionality of a statute that provided grandparents with standing in custody cases when the parents had been separated for six months. There, although the parents were separated, they agreed nonetheless that their children should not have contact with the grandparents. In response, the grandparents filed a complaint for partial custody. The trial court ruled that the statute burdened the parents’ fundamental liberty interest and that the statute was not sufficiently narrowly-tailored because, as this Court noted, "it improperly assumes, based solely on the parents’ separated status, that their joint decisions regarding the raising of their children are infected by a degree of unfitness." This Court stated that the right of parents to make decisions concerning their children was a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Considering that the family was not involved in the court system and that the parents, notwithstanding their separation, agreed that the grandparents should not be involved with the children, we "conclude[d] that the fact of a parental separation for six months or more does not render the state's parens patriae interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate." Accordingly, this Court determined that the provision which granted standing to grandparents when the parents had been separated was unconstitutional.
Maj. Op. at 435–36.
D.P. , 146 A.3d at 207. The parents also raised an equal protection argument, but this Court did not reach it. D.P. , 146 A.3d at 216 n.18. However, the trial court found that argument compelling. It relied upon Superior Court caselaw which held that a grandparent did not have standing to pursue custody when the parents were part of an intact family (based on prior iterations of the standing statute), and it concluded that "there was no constitutionally sound basis to support a classification whereby married parents who are separated should be treated differently [than intact married parents]." Id. at 207.
Id. at 210.
Id. at 215.
Although D.P. analyzed a prior version of the grandparent standing statute, the factual similarities between that case and the one we address here certainly raise a question as to the constitutionality of the statute that we consider today. Here, the parents agree about the lack of contact between the grandparents and the grandchildren. What is more, the parents here maintain an intact family, and they have not invited court intervention into their family. If an actual separation was insufficient to justify state interference with the parents’ right to care, control, and custody of their children in D.P. , it seems unlikely that the decision of presumptively fit parents in an intact relationship constitutionally could be subject to such interference.
III.
Nonetheless, as previously noted, no challenge, whether facial or as applied, has been raised regarding the constitutionality of the statute implicated in this case. Instead, we are charged only with determining whether the order finding that the grandparents have standing is appealable on an interlocutory basis.
Our General Assembly has made the policy decision that grandparents have a place of importance in children's lives and, accordingly, has chosen to provide them with standing to pursue custody. Two statutes confer such standing. Section 5324 provides standing to grandparents to pursue any form of physical or legal custody when the relationship with the child began with the consent of the parent or under a court order and the grandparent is willing to assume responsibility for the child, and also when the child is either dependent, at risk, or has lived with the grandparent for at least twelve consecutive months. Section 5325 grants standing for grandparents to pursue partial physical custody in three scenarios: when the grandparent's child (the child's parent) is deceased; when the parents of the child are engaged in custody proceedings, do not agree on the grandparents’ custody, and the grandparents have a prior relationship with the child that began by parental consent or court order; or when the child has lived with the grandparent for at least twelve consecutive months. In a prior iteration of the custody scheme, the General Assembly had specifically expressed a public policy of ensuring continuing contact between children and their grandparents when their parents are deceased, divorced, or separated. As evidenced by the two statutes that currently provide for grandparent standing, the General Assembly has left no reason to doubt that it continues to favor a policy that fosters continuing contact between children and their grandparents.
23 Pa.C.S. § 5325.
IV.
In the case we confront today, the trial court concluded that the grandparents have standing to pursue custody. This was not a final order. Accordingly, as the Majority correctly notes, a party seeking to appeal must establish that the order satisfies the requirements of Pa.R.A.P. 313. A collateral order is one "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." The parties agree that the first two elements — that the order is separable from the main cause of action and that the right involved is too important to be denied review — are satisfied here. The only question is whether the claim will be irreparably lost if its resolution is delayed. I agree with the Majority's conclusion that the parents’ reliance upon K.C. v. L.A. , 633 Pa. 722, 128 A.3d 774 (2015), is misplaced. I agree as well that the parents cannot rely simply upon assertions that their right to raise their children is burdened in order to demonstrate that their claim will be irreparably lost in the meantime.
See Maj. Op. at 429–30.
Pa.R.A.P. 313(b).
Maj. Op. at 431–33.
Id. at 432–34.
With respect to the final element of the collateral order doctrine, irreparable loss generally has been applied to issues of privilege. This Court has focused upon the cost of litigation on at least one occasion, but that ruling was premised upon federal law supporting a clear policy of cost containment in aviation litigation. In another case, this Court considered the cost of litigation in an immunity claim, but also recognized that the "interests sovereign immunity protects are not entirely pecuniary."
See , e.g. , In re Estate of McAleer , 665 Pa. 275, 248 A.3d 416, 425 (2021) (concluding that the protection of confidential materials would be irreparably lost); Commonwealth v. Williams , 624 Pa. 405, 86 A.3d 771, 784 (2014) (finding irreparable loss because, "once the prosecutor's notes are disclosed, the disclosure cannot effectively be undone"); Commonwealth v. Kennedy , 583 Pa. 208, 876 A.2d 939, 944 (2005) (holding that a challenge to disclosure of work-product would be irreparably lost); Ben v. Schwartz , 556 Pa. 475, 729 A.2d 547, 552 (1999) ("[T]here is no effective means of reviewing after a final judgment an order requiring the production of putatively protected material.")
Pridgen v. Parker Hannifin Corp. , 588 Pa. 405, 905 A.2d 422, 433 (2006) ("[W]e conclude that the substantial cost that Appellants will incur in defending this complex litigation at a trial on the merits comprises a sufficient loss to support allowing interlocutory appellate review as of right, in light of the clear federal policy to contain such costs in the public interest.").
Brooks v. Ewing Cole, Inc. , ––– Pa. ––––, 259 A.3d 359, 375 (2021).
Here, the parents suggest that the time and cost burdens attendant to custody litigation impinge on their rights to parent, and that this burdening represents irreparable harm. Both this Court and the Supreme Court of the United Stated have noted the burdens associated with child custody litigation. And we have noted that revisions to our custody statutes have separated standing and merits so as to afford "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." We have opined that such bifurcation also serves to protect parental rights by providing a mechanism for dismissal at an early stage, "thereby relieving families of the burden of litigating ... merits where a sufficient basis for standing is absent." Nonetheless, these observations addressed the litigation process in the trial court, not the question of whether the litigation burden sufficed to qualify as irreparable loss for collateral order purposes. In D.P. , this Court did not address appealability or the collateral order doctrine because the trial court there had found the statute to be unconstitutional, which ruling prompted a direct appeal to this Court. The D.P. Court cited Troxel for the proposition that custody litigation "can itself impinge upon parental rights." But neither D.P. nor Troxel spoke to the issue that is before us today. Rather than a claim of irreparable loss, the parents’ complaint brings to mind "the type of inconvenience which any litigant might suffer. ..." If the standing decision is appealable only after a final order is entered, the parents must expend the time, money, and energy necessary to reach that point. But that is true in every case. If expenditure of resources when such expenditure could be avoided through an interlocutory appeal sufficed for Rule 313 purposes, then every interlocutory order presumably would satisfy the irreparable loss prong of the collateral order rule. The exception would devour the rule.
See , e.g. , Troxel , 530 U.S. at 75, 120 S.Ct. 2054 ("the burden of litigating [custody] can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations of the child's welfare becomes implicated’ ") (quoting Troxel , 530 U.S. at 101, 120 S.Ct. 2054 (Kennedy, J. dissenting)); Hiller , 904 A.2d at 886 & n.20 (in discussing whether the statute was narrowly tailored, this Court stated, "we cannot conclude that such a benefit always accrues in cases where grandparents force their way into grandchildren's lives through the courts...." and recognized the "strain that custody litigation places on the children as well parents and grandparents.").
D.P. , 146 A.3d at 213.
Id.
See 42 Pa.C.S. § 722(7).
146 A.3d at 213 (citing Troxel , 530 U.S. at 75, 120 S.Ct. 2054 ).
Shearer v. Hafer , 644 Pa. 571, 177 A.3d 850, 860 (2018).
The claim here is not akin to the claims of privilege or immunity that have justified collateral order appeals. This Court has not held that the burden of litigation alone is sufficient to show that a claim will be irreparably lost. The Majority is correct in concluding that this is not a collateral order.
Maj. Op. at 435–36.
V.
In affirming the Superior Court's order here, the Majority aptly observes that "our decision today may be inconsistent" with a previous Superior Court decision in an unrelated case, K.W. v. S.L. , 157 A.3d 498 (Pa. Super. 2017). In K.W. , the Superior Court concluded that an order granting prospective adoptive parents standing was appealable on an interlocutory basis as a collateral order. The Superior Court concluded there that the father's claim would otherwise be irreparably lost because allowance of additional custody litigation without a resolution of the standing issue would burden the father's right to parent his child. Citing D.P. , the Superior Court concluded that the right to parent included "the right to be free of custody litigation involving third parties." For the Superior Court, this included consideration of the "substantial financial burden" and the loss of "months of time caring for and bonding with" the child.
See Maj. Op. at 436 n.8.
K.W. , 157 A.3d at 504.
Id.
As we often have stated, "the holding of a judicial decision is to be read against its facts." The facts of K.W. were atypical, and arguably distinguish that case from the circumstances before us today. In K.W. , the father was not informed of the mother's pregnancy, nor of the fact that she had placed the child for adoption. The child was placed with adoptive parents before the father was even aware of the child's existence. The adoption agency attempted to contact the father and was first able to do so a month after the child's birth. Various procedural issues delayed the case, and the father's preliminary objections to standing were not finally resolved until the child was about one year old. In permitting the interlocutory appeal, the Superior Court weighed "the unique circumstances" including the fact that the father "was deprived of [the child] by a private adoption agency without the benefit of a hearing or other due process protections" and that the court "could not hope to fully vindicate or restore [the father's] rights by the time of his second appeal." The Superior Court's language in holding the standing order to be appealable on an interlocutory basis may have swept more broadly than necessary, but it was undeniable in that case that the father was deprived at length of his right to direct the care, custody, and control of his child.
Lance v. Wyeth , 624 Pa. 231, 85 A.3d 434, 453 (2014).
K.W. , 157 A.3d at 504.
Those facts are very different from those of today's case. Here, Parents maintain custody of Children. As such, even if our Court was bound by the Superior Court's rationale (which, of course, we are not), K.W. would not control.
To the extent that K.W. is not distinguishable, I would disapprove of it. The Majority does not specifically decide that K.W. is (or is not) distinguishable. Instead, it "see[s] no reason to disapprove of K.W. at this time" because the parties here have not addressed the case. Maj. Op. at 436 n.8. Under the circumstances, I take no exception to this exercise of restraint.
* * * *
The order sub judice is not a collateral order within the meaning of Rule 313. I join the Majority Opinion.
CHIEF JUSTICE TODD, dissenting
In affirming the Superior Court's quashal of the appeal of Appellants ("Parents") of the trial court's order holding that that Appellees ("Grandparents") have standing to pursue an action for partial physical custody of Parents’ children ("Grandchildren"), the majority holds that the trial court's order is not a collateral order appealable as of right under Pa.R.A.P. 313. As I conclude that the trial court's order is appealable as a collateral order pursuant to Rule 313, I respectfully dissent.
Rule 313 provides:
(a) General rule.—An appeal may be taken as of right from a collateral order of a trial court or other government unit.
(b) Definition.—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.
As recognized by the majority, Grandparents do not dispute that Parents have established the first two prongs of Rule 313(b). Specifically, with regard to the first prong, Grandparents agree that the issue of standing is separable from, and collateral to, the main cause of action. See Majority Opinion at 430–31. Grandparents also acknowledge that a decision regarding standing will have a direct effect on their ability to participate in custody proceedings, which impacts the important issue of the children's best interest, thereby establishing the second prong. See id. at 431–32. Thus, I agree with the majority that the dispositive issue in this matter is whether Parents have satisfied the third prong of the collateral doctrine – that their claim will be irreparably lost if postponed until final judgment in the case. Ultimately, the majority concludes that Parents have failed to satisfy the irreparability prong because they will be able to challenge the trial court's order with respect to standing on appeal from the final order in the underlying custody proceeding. I disagree with this conclusion.
The right to make decisions regarding the care, custody, and control of one's children is "one of the oldest fundamental rights protected by the Due Process Clause." Hiller v. Fausey , 588 Pa. 342, 904 A.2d 875, 885 (2006) (citing Troxel v. Granville , 530 U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). Further, courts have recognized that the "burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated.’ " Troxel , 530 U.S. at 75, 120 S.Ct. 2054 (citation omitted).
Indeed, in Hiller , we acknowledged the general benefits of relationships between children and their grandparents, but concluded that such benefits do not always "accrue[ ] in cases where grandparents force their way into grandchildren's lives through the courts, contrary to the decision of a fit parent." Hiller , 904 A.2d at 886. We emphasized that "[t]his consideration is especially resonant given the strain that custody litigation places on the children as well as parents and grandparents, as noted by Justice Kennedy in [his dissent in] Troxel ." Id. at 886 n.20.
In D.P. v. G.J.P. , 636 Pa. 574, 146 A.3d 204 (2016), we addressed the importance of the threshold determination of standing in custody proceedings. In that case, the paternal grandparents filed a custody action against the parents of their grandchildren, seeking partial physical custody of their grandchildren under 23 Pa.C.S. § 5325(2) (abrogated), which allowed grandparents to seek partial or supervised physical custody of their grandchildren if the children's parents had been separated for at least six months, or were involved in divorce proceedings. The parents in D.P. had been separated for approximately two years, but had not initiated divorce proceedings, and they mutually agreed that all contact between the children and the grandparents should be discontinued. After the trial court issued an interim custody order granting shared legal custody only to the parents, and directing that the grandparents have no contact with the children, the parents filed a motion to dismiss the grandparents’ custody petition, alleging that Section 5325(2) violated their constitutional rights to raise their children as they saw fit. The trial court granted the motion, finding Section 5325(2) to be unconstitutional. On direct appeal, we affirmed the trial court's order granting the parents’ motion to dismiss, concluding that Section 5325(2), which granted the grandparents standing to seek custody solely on the basis of a parental separation of six months or more, was unconstitutional, but could be severed from the remainder of the statute.
Relevant herein, in discussing the "segregation" of "grandparent standing requirements from merits considerations," we explained:
[W]henever there are contested issues relating to standing, [Chapter 53 of the Domestic Relations Code] 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 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.
We further recounted in D.P. our prior recognition in Hiller of the "costs associated with custodial litigation," which include both financial costs, which can be particularly detrimental for a parent struggling financially, and may ultimately undermine the parent's plans for the child's future, as well as emotional costs, which include the strain that custody litigation places on the children, parents, and grandparents. Id. at 213 n.15. We noted that other courts have expressed similar concerns regarding the impact of custody litigation. See, e.g., Conlogue v. Conlogue , 890 A.2d 691, 699 (Me. 2006) ("the burdens of litigation are not solely financial, but include various forms of ‘pressures and stress’ that can pose a real threat to family well-being"); Hawk v. Hawk , 855 S.W.2d 573, 577 n.2 (Tenn. 1993) (recognizing that stresses in custody cases involving grandparents include those which may arise from public disclosure of the details of private, inter-generational disputes).
Notwithstanding the above, the majority suggests that, in relying on D.P ., Parents "seemingly ignore" that our discussion therein of the protection of parental rights occurred "not in the context of an appeal from a trial court's order concluding that a grandparent has standing to file and pursue an action for partial physical custody ... but, rather, in the context of bifurcation of the issue of standing from any merits determination at the trial court level." Majority Opinion at 433 n.6. It is true that the procedural backdrop of our decision in D.P. may be distinct from the matter sub judice . However, in my view, the majority disregards the relevant analysis.
The majority's discussion of D.P. , while brief, is more than what was offered by Grandparents, who failed even to cite it in their brief.
As discussed above, this Court observed in D.P. , as other courts have recognized, that regardless of the ultimate decision on the merits, it is custody litigation itself which is disruptive to the family and impinges upon parental rights. The majority is correct that Parents will be able to appeal a final order of custody; however, at that juncture, Parents (and Grandchildren) will have already been subjected to the expense, stress, and pain of litigation. Accordingly, in this way, Parents’ rights will be irreparably lost if immediate review is not permitted.
Finally, the majority acknowledges that its decision "may be inconsistent" with the Superior Court's decision in K.W. v. S.L. , 157 A.3d 498 (Pa. Super. 2017). See Majority Opinion at 436 n.8. In K.W. , the trial court granted a child's prospective adoptive parents in loco parentis standing to file a custody complaint. The child's biological father appealed, and, prior to addressing the merits, the Superior Court considered whether the trial court's order was appealable under the collateral order doctrine. In concluding that it was, the court determined that the father's claim would be irreparably lost if postponed until a final custody order was issued. The court reasoned:
Father has a fundamental constitutional right to parent [his 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 could also lose months of time caring for and bonding with [his child] as the custody hearing and appeals process drags on.
K.W., 157 A.3d at 504.
The majority concludes that, while Parents "derive at least some of their arguments relative to the irreparability prong" from the court's reasoning in K.W. , because the parties did not address the applicability or continued viability of K.W. in their briefs, there is no reason to disapprove of the Superior Court's decision in K.W. at this time. Majority Opinion at 436 n.8.
Certainly, the decisions of lower courts are not binding on this Court. That said, in my view, the Superior Court in K.W . recognized, and succinctly explicated, what the majority does not: that Parents’ claim will be irreparably lost if review of the trial court's order granting Grandparents standing is postponed until a final custody order is issued, because Parents’ constitutional right to make decisions regarding their children, and to be free of the expense, strain, and pain of litigation, will have already been burdened. Accordingly, I dissent.
Justice Donohue joins this dissenting opinion.