No.

Supreme Court, U.S.FILED

1 0-2 0 4 AUG 1~2 7010

OFFtC-E OF THE CLERK

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E.S.H.,

V.Petitioner,

K.D. AND S.L.C.,Respondents.

On Petition for Writ of Certiorarito the Superior Court of Pennsylvania

PETITION FOR WRIT OF CERTIORARI

LEONARD G. BROWN, IIICounsel of Record

DAVID R. DYECLYMER, MUSSER, BROWNCONRAD, P.C.408 W. CHESTNUT ST.LANCASTER, PA 17603(717) 299-7101len@cmbclaw.com

Counsel for Petitioner E.S.H.

August 2, 2010

Becket Gallagher ¯ Cincinnati, OH. Washington, D.C." 800.890.5001

Blank Page

QUESTIONS PRESENTED

Eric S. Harner (hereinafter E.S.H. or Father) andKaren Harner (hereinafter Mother) were married, hada daughter, O.H., and separated three years later.Upon separation, Father and Mother enjoyed sharedlegal custody: Mother enjoyed primary physicalcustody, and Father exercised partial custody everythree out of four weekends per month. Mother met,cohabitated with and eventually married Kent Deeter(hereinafter K.D.). O.H. lived with K.D., a legalstranger, for only two years and three months beforeher mother died. When Mother died, Father assumedsole legal and physical custody of his daughter, O.H.Although a legal stranger, K.D. petitioned for and wasgranted shared legal custody and primary physicalcustody of O.H. over Father’s strong and continuousobjections. This case presents the following questions:

Whether a court violates the FourteenthAmendment to the United States Constitutionwhen it denies a fit parent his fundamentalright to parent his child without firstestablishing a compelling state interest andthen only effectuating that interest by anarrowly tailored means.

o Whether Pennsylvania’s in loco parentisdoctrine, permitting any legal stranger to seeklegal custody of a child, over the parents’objections, violates parents’ constitutional rightto raise their children which is firmlyestablished under the Fourteenth Amendment’sDue Process Clause.

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3. Whether the disparity among the statesrequires this Honorable Court to make adefinitive holding that the FourteenthAmendment’s Due Process Clause requires thatonly a showing that the parent’s action orinaction resulting in harm to the child triggersthe state’s "compelling interest" without whichthe state may not infringe upon parents’fundamental right to parent their child.

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PARTIES TO THE PROCEEDINGS

The parties to the proceedings are the originalDefendant, Eric S. Harner (hereafter referred to asE.S.H. or Father), who is the biological father of thechild, O.H., and the Petitioner herein. The originalPlaintiff, Kent Deeter (hereafter referred to as K.D.),is a third party or legal stranger to the child and theRespondent for this proceeding. Sandra L. Cooney(hereafter referred to as S.L.C.), is O.H.’s maternalgrandmother, also a third party or legal stranger, wasoriginally identified as a co-defendant and is thesecond Respondent for this proceeding.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ................... i

PARTIES TO THE PROCEEDINGS ...........iii

TABLE OF CONTENTS .....................iv

TABLE OF AUTHORITIES .................viii

PETITION FOR A WRIT OF CERTIORARI ..... 1

OPINIONS BELOW ........................ 1

JURISDICTION ........................... 1

CONSTITUTIONAL PROVISIONS INVOLVED 1

STATEMENT OF THE CASE ................ 2

I. Factual History ....................... 2

II. Procedural History .................... 4

A. The Court of Common Pleas of SchuylkillCounty ........................... 4

B. The Superior Court of Pennsylvania ... 8

C. The Supreme Court of Pennsylvania ... 9

REASONS FOR GRANTING THE PETITION .. 10

I. Because Pennsylvania and other statesrefuse to recognize a parent’s fundamentalright as articulated in Troxel v. Granville

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and fail to apply a strict scrutiny analysis tothat fundamental right, this Court mustdefinitively require a strict scrutiny analysiswhen parents’ fundamental rights to governtheir children’s care and custody areimplicated .......................... 10

II. Pennsylvania’s common law in loco parentisdoctrine has evolved into an overly broaddoctrine that permits any person whobelieves he or she has developed arelationship with a child to seek custody ofthe child against the fit parent ..........11

Because there is discord among the statecourts regarding whether a showing of harmis required to interfere with the parent/childrelationship, this Court must intervene andrequire a uniform protection of thisfundamental right ................... 12

ARGUMENT ............................. 12

PENNSYLVANIA AND OTHER STATESOFFEND THE CONSTITUTION BYDISREGARDING CONTROLLINGFEDERAL PRECEDENT AND BY FAILINGTO RECOGNIZE THAT PARENTS’FUNDAMENTAL RIGHT TO PARENTTHEIR CHILD REQUIRES STRICTSCRUTINY ANALYSIS ............... 12

no Pennsylvania courts ignored Troxel andfailed to recognize that parents enjoy afundamental right to govern the care,custody and control of their children...13

II.

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Bo Pennsylvania courts applied a muchlower standard of review than is requiredto protect Father’s fundamental right toparent his children ................. 15

Co Pennsylvania is one of many states thatignore Troxel and other United StatesSupreme Court precedent which protectparents’ fundamental rights againstattacks by third parties .............17

PENNSYLVANIA’S IN LOCO PARENTISDOCTRINE VIOLATED FATHER’SFUNDAMENTAL RIGHT TO PARENT HISCHILD ............................. 19

UNIFORM APPLICATION OF THEFOURTEENTH AMENDMENT’S DUEPROCESS CLAUSE REQUIRES THATBEFORE THE STATE’S COMPELLINGINTEREST IS TRIGGERED, THE STATEMUST ESTABLISH THAT THE PARENTHARMED THE CHILD ...............24

A° Pennsylvania courts are out of step withconstitutional law which requires adetermination that the parent harmedthe child before triggering the state’scompelling interest ................. 25

Bo Because discord exists among the statesregarding whether a showing of harm isrequired to interfere with theparent/child relationship, this Courtmust require a uniform treatment offundamental rights ................ 27

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CONCLUSION ........................... 32

APPENDIX

Appendix A: Pa. Superior CourtMemorandum(Dec. 21, 2009) ........... la

Appendix B: Pa. Court of Common PleasOpinion and Order(Apr. 8, 2009) ........... 25a

Appendix C: Pa. Supreme CourtOrder denying review(May 3, 2010) .......... 133a

Appendix D: States that require parentalunfitness or a showing ofharm before interfering withthe parent/childrelationship ........... 134a

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TABLE OF AUTHORITIES

Cases

Askew v. Donoho,993 S.W.2d 1 (Tenn. 1999) ............... 30

B.A. & A.A. v. E.E.,559 Pa. 545, 741 A.2d 1227 (1999) ......... 20

Brandon L. v. Moats,209 W. Va 752,551 S.E.2d 674 (W. Va. 2001) ............. 29

Brooks v. Parkerson,265 Ga. 189, 454 S.E.2d 769 (Ga. 1995), cert.denied, 516 U.S. 942, 116 S. Ct. 377,133 L. Ed.2d 301 (1995) .......................... 30

C.E.W. v. D.E.W.,845 A.2d 1146 (Me. 2004) ................ 18

Deboer v. Deboer,509 U.S. 1301 (1993) .................... 25

DeRose v. DeRose,469 Mich. 320 (Mich. 2003) ............... 31

Downs v. Scheffler,206 Ariz. 496 (Ariz. 2004) ................28

Gestl v. Frederick,754 A.2d 1087 (Md. Ct. Spec. App. 2000) .... 18

Griswold v. Connecticut,381 U.S. 479 (1965) ..................... 27

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Harrold v. Collier,107 Ohio St. 3d 44, 2005 Ohio 5334, 836 N.E.2d1165 (2005) ............................ 28

Hawk v. Hawk,855 S.W.2d 573 (Tenn. 1993) ............. 30

Hiller v. Fausey,588 Pa. 342,904 A.2d 875 (Pa. 2006) ................... 6

In Interest of La Rue,244 Pa. Super. 218 (1976) ................ 13

In re Herbst,1998 OK 100, 971 P.2d 395 (Okla. 1998) .... 30

J.F. v. D.B.,897 A.2d 1261 (Pa. Super. Ct. 2006) ........ 21

Jankowski-Burczyk v. INS,291 F.3d 172 (2d Cir. Conn. 2002) ......... 28

Jones v. Jones,884 A.2d 915 (Pa. Super. Ct. 2005) ......... 18

Kramer v. McMahon,640 A.2d 926 (Pa. Super. Ct. 1994) ......... 20

Meyer v. Nebraska,262 U.S. 390 (1923) ............... 13, 25, 27

Morgan v. Wiser,923 A.2d 1183 (Pa. Super. Ct. 2007) ........ 20

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Moriarty v. Bradt,177 N.J. 84 (N.J. 2003) .................. 31

Pierce v. Society of Sisters,268 U.S. 510 (1925) ............... 13, 14, 23

Prince v. Massachusetts,321 U.S. 158 (1944) .................. 13, 14

Quilloin v. Walcott,434 U.S. 246 (1978) ..................... 25

Reno v. Flores,507 U.S. 292, 113 S. Ct. 1439, 123 L. Ed. 2d 1(1993) ..................... 7, 14, 16, 17, 26

Rideout v. Riendeau,761 A.2d 291 (Me. 2000) ................. 18

Riepe v. Riepe,91 P.3d 312 (Ariz. Ct. App. 2004) .......... 17

Robinson v. Ford-Rob inson,2005 WL 1041158 (Ark. 2005) ............. 19

Roger D.H. v. Virginia O. (In re Roger D.H.),2002 WI App. 35 (Wis. Ct. App. 2002) ...... 29

Rubano v. DiCenzo,759 A.2d 959 (R.I. 2000) .................... 19

S.F. v. M.D.,751 A.2d 9 (Md. Ct. App. 2000) ............ 18

Shepp v. Shepp,88 Pa. 691,906 A.2d 1165 (Pa. 2006) ........ 8

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Skinner v. Oklahoma ex rel. Williamson,316 U.S. 535 (1942) .................. 14, 27

Stanley v. Illinois,405 U.S. 645 (1972) ..................... 27

State ex rel. Reeves v. O’Malley,2001 Ohio App. LEXIS 2530 (Ohio Ct. App.,Cuyahoga County June 1, 2001) ...........28

T.B. v. L.R.M.,786 A.2d 913 (Pa. 2001) .................. 18

Troxel v. Granville,530 U.S. 57 (2000) ................... passim

Vibbert v. Vibbert,144 S.W.3d 292 (Ky. App. Ct. 2004) ........ 28

Williams v. Williams,256 Va. 19, 501 S.E.2d 417 (Va. 1998) ...... 30

Wisconsin v. Yoder,406 U.S. 205 (1972) .................. 14, 25

Zeman v. Stanford,789 So. 2d 798 (Miss. 2001) ............... 29

Constitutional Provisions

U.S. Const. amend. V ................... 14, 27

U.S. Const. amend. IX ...................... 27

U.S. Const. amend. XIV, § 1 ..............passim

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Statutes

28 U.S.C. §1257(a) .......................... 1

PETITION FOR A WRIT OF CERTIORARI

E.S.H. respectfully petitions for a writ of certiorarito review the judgment of Pennsylvania’s trial andappellate courts.

OPINIONS BELOW

The memorandum of the Superior Court ofPennsylvania is unpublished and is reproduced at App.A at la-24a. The opinion and order of the Court ofCommon Pleas of Schuylkill County is unpublishedand is reproduced at App. B at 25a-132a. The order ofthe Supreme Court of Pennsylvania is unpublishedand is reproduced at App. C at 133a-134a.

JURISDICTION

The judgment of the Superior Court ofPennsylvania was entered on December 21, 2009. Theorder of the Supreme Court of Pennsylvania denyingthe Petition for Allowance of Appeal was entered onMay 3, 2010. This Court has jurisdiction pursuant to28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The first section of Amendment XIV to theConstitution of the United States provides:

§ 1: All persons born or naturalized in theUnited States, and subject to the jurisdictionthereof, are citizens of the United States and ofthe State wherein they reside. No State shallmake or enforce any law which shall abridge theprivileges or immunities of citizens of the

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United States; nor shall any State deprive anyperson of life, liberty or property, without dueprocess of law; nor deny to any person within itsjurisdiction the equal protection of the law.

STATEMENT OF THE CASE

I. Factual History

This petition examines the state court’s refusal toacknowledge, consider and apply the principlesarticulated in Troxel v. Granville, 530 U.S. 57 (2000) tothe present case involving a parent’s right to exercisecustody and control of his child against a third party,a legal stranger.

Additionally, the case presents this HonorableCourt with the opportunity to review whether theapplication of Pennsylvania’s overly broad in locoparentis doctrine used against a fit parent, andwithout a finding of harm, violates the parent’s dueprocess rights.

Petitioner, E.S.H., is the father of O.H. Father andMother were married in 1995 and O.H. was born in1998. Mother and Father separated in 2001 and weredivorced in April, 2004. Father has remained aconstant presence in O.H.’s life since her birth.Pursuant to a court-approved custody agreement,Mother enjoyed primary custody while Father hadphysical custody of O.H. alternating week-ends of themonth and every Wednesday evening for two and one-half hours. Mother and Father agreed to modifycustody and for several years, in exchange forWednesday evenings, Father enjoyed custody on three

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out of four weekends per month. Father’s fitness toparent his child has never been questioned.

Following their divorce, Father remarried in 2004.Mother met K.D. in 2004; she and O.H. started livingwith K.D. in February, 2005. Mother and K.D. weremarried in March, 2006. As an ex-spouse, Father wasnever in a position to object to Mother’s remarriage toK.D. or to K.D.’s involvement in O.H.’s life by virtue ofMother’s remarriage. Although Father could not objectto K.D.’s involvement in his daughter’s life, he neverconsented to K.D.’s assuming parental status andnever relinquished parental authority to K.D., a legalstranger. During the marriage, K.D. exercised no legalauthority over O.H. and acted in the limited role of acare-giver consistent with his marriage to Mother. Hewas not the child’s father or parent; he was onlyMother’s husband.

Throughout her adult life, Mother suffered fromprimary sclerosing cholangitis. In the spring of 2007,Mother became sick with pneumonia, and on May 23,2007, Mother passed away. Days after Mother’s deathand funeral, Father assumed sole legal and solephysical custody of O.H., and she went to live with herfather, her step-mother and her half-brother. K.D. fileda custody complaint, and the trial court granted K.D.shared legal custody and shared physical custody forthe summer. After two months, when the new schoolyear started, the court granted K.D. primary custody,required O.H. to relocate back to K.D.’s home countyand vitiated Father’s ability and right to care for andraise his child.

Eighteen months and a full custody trial later, thetrial court awarded shared legal custody and primary

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physical custody to K.D., a legal stranger. E.S.H.always strenuously objected to K.D. seeking in locoparentis status and K.D.’s arguments that O.H. wouldbe better cared for by him. Father E.S.H.’s legalcustody was divided with K.D., and Father wasgranted only partial physical custody every second andfourth weekend along with shared holidays. Fatherappealed to the Superior Court of Pennsylvania, whichaffirmed the trial court’s decision. After the SuperiorCourt denied re-argument, Father submitted aPetition for Allowance of Appeal to Pennsylvania’sSupreme Court, which denied review. Father nowseeks this Honorable Court’s review.

II. Procedural History

On May 30, 2007, K.D., claiming in loco parentisstatus, filed a complaint for custody of O.H. againstE.S.H., the natural father. The proceedings andhearings conducted before trial showed that Fatherwas always active and involved in O.H.’s life; alwaysstrongly objected to K.D. assuming a parental role inthe child’s life; and always maintained that no claim orinterest which the court attributed to K.D. couldsupplant his fundamental right, as a fit father, toparent his child.

A. The Court of Common Pleas of SchuylkillCounty

On April 8, 2009, the Honorable Jacqueline L.Russell entered an Opinion and Final Order of theCourt of Common Pleas for Schuylkill County grantingshared legal custody of O.H. to K.D. and E.S.H.,primary physical custody to K.D. and partial physicalcustody to E.S.H. The trial court’s opinion repeated

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K.D.’s findings of facts and conclusions of law andcontained little original analysis of controlling law.

In support of its determination that K.D. andS.L.C. had standing to pursue custody, the trial courtstated:

Thus while it is presumed that a child’s bestinterest is served by maintaining the family’sprivacy and autonomy, that presumption mustgive way where the child has established strong,psychological bonds with a person who,although not a biological parent, has lived withthe child and provided care, nurture, andaffection, assuming in the child’s eye a staturelike that of a parent. Where such a relationshipis shown, our courts recognize that the child’sbest interest requires that the third party begranted standing so as to have the opportunityto litigate fully the issue of whether thatrelationship should be maintained even over aparent’s objections.

Trial court opinion at App. B at 108a.

The trial court’s articulated legal standard fails toaccount for the clear precedent of this Court, whichmakes clear that the parent’s fundamental rightcannot be impinged upon without the requiredcompelling interest (i.e., a showing that the parent’sactions harmed or will harm the child.) As JusticeO’Connor opined, "The Due Process Clause does notpermit a state to infringe on the fundamental right ofparents to make childrearing decisions simply becausea state judge believes a ’better’ decision could bemade." Troxel, 530 U.S. at 72. Like Troxel, this case

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involves the elevation and expansion of a broadlyapplied custody doctrine at the expense of a parent’sfundamental right to parent his or her child. Justbecause the trial court believed that it could make abetter decision did not entitle it to do so.

The trial court also relied on Hiller v. Fausey, 588Pa. 342, 904 A.2d 875 (Pa. 2006), when it recognizedthat K.D. and S.L.C., "as third parties, bear a heavyburden to establish a claim to custody which iscontrary to the position urged by the parent." App. B,109a. The trial court continued to quote from thatopinion:

When the judge is hearing a dispute betweenthe parents, or a parent, and a third party,...It]he question still is, what is in the child’s bestinterest? However, the parties do not start outeven; the parents have a "prima facie right tocustody," which will be forfeited only if"convincing reasons" appear that the child’s bestinterest will be served by an award to the thirdparty.

Trial court opinion at App. B at 110a.

The trial court refused to recognize and applycurrent controlling jurisprudence, which, since Troxel,requires more than granting fit parents a prima facieright to custody. Interestingly, the only place the trialcourt mentioned Troxel was in a footnote citing adissenting opinion to support its proposition that alldecisions must be child-centered:

The Court also finds a comment by UnitedStates Supreme Court Justice Stevens in his

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dissent in Troxel v. Granville, 530 U.S. 57(2000) worthy of note. Justice Stevens observed,"Cases like this do not present a bipolarstruggle between the parents and the State overwho has final authority to determine what is ina child’s best interests. There is at a minimuma third individual, whose interests areimplicated in every case... -the child.

Trial court opinion App. B at 108a, citing Troxel, 530U.S. at 86.

The trial court failed to recognize that this case isnot a parent versus parent custody case wherein thetrial court must decide the child’s best interestsbetween two equally positioned parents. The trialcourt gave only a polite nod to Father’s constitutionallyprotected fundamental right by applying a minimalprima facie presumption to his right to custody.

A parent’s fundamental right to care for his or herchild may only be abridged by a compelling interestthat is narrowly tailored. See e.g. Reno v. Flores, 507U.S. 292 (1993). The trial court granted shared legalcustody and primary physical custody to a third partyover the continuous objections of a fit parent bypurportedly overcoming a substandard parentalpresumption or a mere prima facie right. The trialcourt not only ignored the parent’s fundamental rightbut, when abridging that right, failed to identify acompelling state interest and neglected to require thatsuch abridgment be narrowly tailored. In so doing, thetrial court violated Father E.S.H.’s fundamentalrights.

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B. The Superior Court of Pennsylvania

The Pennsylvania Superior Court’s order sustainedK.D.’s in loco parentis status and restated the trialcourt’s assertion that "the intent of the custody order[was] to serve [O.H.’s] well-being." (Trial court opinion,App. B, 121a). In this review, the Superior Courtweighed the extent of E.S.H.’s involvement andinterest in O.H.’s life against the involvement ofK.D.--clearly the wrong standard.

The Superior Court merely affirmed the trialcourt’s opinion that "there is no question that a parenthas a fundamental right to make decisions about thecare, custody and control of his child and that the lawprovides that the determination about a child made bya fit parent must be given material weight when atissue before a court." Trial court opinion, App. B at105a. This is only lip-service to the bedrock principlearticulated in Troxel because the Superior Court, likethe trial court, failed to establish the unfitness of theparent prior to abridging his fundamental right. Inupholding the trial court’s decision, the Superior Courtnever mentioned Troxel or recognized its basicprinciple that a parent has a fundamental right to carefor and raise his child.

Equally troubling is the fact that the SuperiorCourt failed to recognize Father’s reliance on Troxel bystating, "Father relies primarily on our SupremeCourt’s decision in Shepp v. Shepp, 88 Pa. 691, 906A.2d 1165 (Pa. 2006), to argue that the court wasrequired to apply a strict scrutiny test and determineif there was a compelling interest to protect the childbefore infringing upon this right." Superior Courtopinion at App. A at 13a. The Superior Court refused

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to acknowledge that Father’s brief was predicated onhis federally protected rights under the United StatesConstitution and replete with argument based uponTroxel, as well as subsequent state cases whichclarified and incorporated its holding.

Again, seemingly without independent analysis, theSuperior Court adopted the trial court’s opinion andconclusions of law when it wrote, "We further declineFather’s request to require the third party must provethat a parent is unfit in order to gain custody over aparent." Superior Court opinion at App. A at 12a. TheSuperior Court used pre-Troxel case law to support itsmisguided decision which rejected a requirement for ashowing of harm and completely failed to recognizefederal holdings which required harm as a conditionprecedent to triggering the state’s compelling interest.

C. The Supreme Court of Pennsylvania

E.S.H. filed a timely appeal to the Supreme Courtof Pennsylvania. By Order dated May 3, 2010, theSupreme Court denied review without comment orwritten opinion. App. C 133a.

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REASONS FOR GRANTING THE PETITION

Because Pennsylvania and other states refuseto recognize a parent’s fundamental right asarticulated in Troxel v. Granville and fail toapply a strict scrutiny analysis to thatfundamental right, this Court mustdefinitively require a strict scrutiny analysiswhen parents’ fundamental rights to governtheir children’s care and custody areimplicated.

In Troxel, this Court stated, "We do not, and neednot, define today the precise scope of the parentalrights in the visitation context." Troxel at 73. Becausestates are unclear about the level of deference due theparent’s fundamental right this Court mustdefinitively articulate the precise scope of the parentaldue process right in the custody or visitation context.

Troxel clearly announced, "It cannot now bedoubted that the Due Process Clause of the FourteenthAmendment protects the fundamental right of parentsto make decisions concerning the care custody andcontrol of their children." Id. at 66. What the TroxelCourt left for another day was the business of definingprecisely the appropriate standard courts must applybefore depriving parents of their fundamental right tomake decisions concerning the care, custody andcontrol of their children. That day has come.

Recognizing the gravity of a fundamental right,Justice Thomas directed the court down the correctpath when in his concurrence he wrote, "The opinionsof the plurality, Justice Kennedy, and Justice Souterrecognize such a right, but curiously none of them

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articulates the appropriate standard. I would applystrict scrutiny to infringements of fundamentalrights." Id. at 80.

II. Pennsylvania’s common law in loco parentisdoctrine has evolved into an overly broaddoctrine that permits any person whobelieves he or she has developed arelationship with a child to seek custody ofthe child against the fit parent.

The in locoparentis doctrine developed over time asa narrow exception to the principle that only parentsor the state had standing to pursue custody of a child.The doctrine requires exacting proof that the thirdparty, the legal stranger, acted as a parent in place ofthe parent and with the consent of the parent.

Unfortunately, over time, through well intended,albeit misguided court decisions, the exceptionswallowed the rule. The once narrow legal doctrine haschanged into a broadly applied legal fiction whichpermits any person at any time to petition the courtand seek custody of a child even if the fit parentobjects. This Honorable Court needs to act now to haltcontinued constitutional violations and rectify theimmediate effects of the present wrongful decision.

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III. Because there is discord among the statecourts regarding whether a showing ofharm is required to interfere with theparent/child relationship, this Court mustintervene and require a uniformprotection of this fundamental right.

Because numerous state courts refuse to recognizethis Court’s decisions that parents’ enjoy afundamental right to raise their children which can beimpinged only by showing parental unfitness or harmto the child, this Honorable Court must address theissue and require a uniform treatment of fundamentalrights.

The Pennsylvania courts in this instant matter andother states that simply provide parents with a primafacie right to custody of their children without anyshowing of harm completely undermine the principlesarticulated in Troxel and the century of precedentupon which it was built.

ARGUMENT

PENNSYLVANIA AND OTHER STATESOFFEND THE CONSTITUTION BYDISREGARDING CONTROLLING FEDERALPRECEDENT AND BY FAILING TORECOGNIZE THAT PARENTS’FUNDAMENTAL RIGHT TO PARENT THEIRCHILD REQUIRES STRICT SCRUTINYANALYSIS.

This Court has firmly established that a parent hasa fundamental right to parent his or her child and anyinfringement of that right must be narrowly tailored to

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serve a compelling interest. The Pennsylvania trialand appellate courts refused to follow controllingUnited States precedent by failing to recognize thatFather’s right to parent his child is fundamental. ThePennsylvania courts also failed to apply the properstandard of review required to protect Father’sfundamental right. Additionally, Pennsylvania is notalone; many states refuse to follow precedent andrecognize fundamental parental rights. Therefore, thiscourt must intervene.

A. Pennsylvania courts ignored Troxel andfailed to recognize that parents enjoy afundamental right to govern the care,custody and control of their children.

This Court has long recognized a fit parent’sfundamental right to make decisions concerning his orher child’s upbringing. It is "perhaps the oldest of thefundamental liberty interests." Troxel v. Granville, 530U.S. at 65 (2000) (plurality opinion).

This Court has also explained that, because "It]hechild is not the mere creature of the State," Pierce v.Society of Sisters, 268 U.S. 510,535 (1925); see also InInterest of La Rue, 244 Pa. Super. 218,224 (1976), "[i]tis cardinal that the custody, care and nurture of thechild reside first in the parents, whose primaryfunction and freedom include preparation forobligations the state can neither supply nor hinder."Prince v. Massachusetts, 321 U.S. 158, 166 (1944)(citing Pierce, 268 U.S. at 535). Cases such as Myers,I

Meyer v. Nebraska, 262 U.S. 390 (1923).

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Pierce,2 Skinner,3 Prince,~ Yoder,5 and othersdemonstrate this Court’s longstanding deference to theparents’ fundamental right to rear their childrenwithout substantial and unnecessary interference fromthe state.

Although the plurality in Troxel chose not to "definetoday the precise scope of the parental due processright in the visitation context," Justice Thomas quitesuccinctly opined that "strict scrutiny should apply toinfringements of fundamental rights." Troxel at 80.Additionally, in Reno v. Flores, the Supreme Courtrecognized that a long line of cases have interpretedthe "Fifth and Fourteenth Amendments’ guarantee of’due process of law’ to include a substantivecomponent, which forbids the government to infringecertain ’fundamental’ liberty interests at all, nomatter what process is provided, unless theinfringement is narrowly tailored to serve a compellingstate interest." Reno v. Flores, 507 U.S. 292, 301-02,113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (emphasis inoriginal).

Unfortunately, even though this Court hasprovided adequate guidance and recognized the properanalysis for infringements of fundamental rights, thetrial and appellate courts in this case refused to apply

Pierce v. Society of Sisters, 268 U.S. 510,535 (1925).

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942).

Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972).

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Troxel and other authority when they afforded Fathera mere presumption of custody.

Clearly, Troxel has cemented the principle thatparents have a fundamental liberty interest, groundedin the Due Process Clause of the FourteenthAmendment, in directing the care, custody and controlof their children. In the present case, the Pennsylvaniacourts refused to acknowledge this binding authorityand failed to recognize Father’s fundamental right toparent his child. In doing so, the Pennsylvania courtsviolated Father’s clearly established right guaranteedby the Fourteenth Amendment’s Due Process Clause.

B. Pennsylvania courts applied a much lowerstandard of review than is required toprotect Father’s fundamental right toparent his children.

While Justice Thomas’s concurrence in Troxelstated that strict scrutiny review should be applied toinfringements of parents’ fundamental rights to parenttheir children (530 U.S. at 67) and while thePennsylvania Supreme Court has held that strictscrutiny applies to infringements of fundamentalrights (588 Pa at 358) the Superior Court stated that"the best interest of the child standard in custodycases gives deference to the parents’ prima facie rightto custody over a third party and accords such rightmore weight than a third party’s claim." SuperiorCourt Opinion at App. A at 14a. Simply put,considering recent United States and PennsylvaniaSupreme Court decisions, the Pennsylvania SuperiorCourt used the wrong standard.

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While this Court has not yet specifically held thatstrict scrutiny applies to infringements on parents’fundamental right to raise their children, it has clearlyapplied strict scrutiny to other fundamental rights.Additionally, even though Reno v. Flores, 507 U.S. 292(1993) did not use the specific phrase "strict scrutiny,"the Court accepted the applicable standard as requiredto test the government’s infringement of thefundamental right.

However, many state courts, and specificallyPennsylvania in this case, still employ a much lower"presumption of custody" standard. The PennsylvaniaSuperior Court relied on pre-Troxel case law when itstated,

The [Superior Court] has consistently held[that] ... "[p]arenthood alone is insufficient todefeat a custody claim raised by a non-parent."The most important issues in a custody disputeare the child’s physical, intellectual, moral, andspiritual well-being. The fact that the bestinterest of the child is the paramountconsideration is . . . beyond peradventure ....Indeed, even the rights of the parents aresubordinate to the child’s best interest.

Superior Court opinion App. A at 14a.

Pennsylvania’s violation of Father’s fundamentalright is further evidenced by the Superior Court’sstatement that the "best interest standard givesdeference to parents’ prima facie right to custody overa third party and accords such right more weight thana third party’s claim." Superior Court opinion App. Aat 14a. The Superior Court’s reliance on the "deference

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to parents’ prima facie right to custody over thirdparties" improperly employs a much lower standard ofprotection than is required by Troxel. See SuperiorCourt Opinion, App. A at 14a. A parent cannot enjoy afundamental right that is only afforded a prima faciedeference. Such token protection of a fundamentalright is tantamount to having no fundamental right atall.

Because the lower courts did not consider or applythe principles articulated in Reno and Troxel, thisCourt should reverse their decisions and reiterate thatfit parents enjoy a fundamental right to the care,custody and control of their child, and all courts mustapply a standard of strict scrutiny analysis to anygovernment infringement of that fundamental right.

C. Pennsylvania is one of many states thatignore Troxel and other United StatesSupreme Court precedent which protectparents’ fundamental rights againstattacks by third parties.

A growing number of states, including Arizona,Arkansas, Colorado, Kentucky, Maine, Maryland,Massachusetts, Minnesota, New Jersey, New Mexico,Pennsylvania, Rhode Island, Utah, West Virginia andWisconsin, grant custody to third parties over theobjection of the child’s fit parent. Relying on varioustheories, these states have circumvented Troxel’sguarantee of a fit parent’s right to family autonomyand privacy as displayed in the following cases: Riepev. Riepe, 91 P.3d 312,318 (Ariz. Ct. App. 2004) (A thirdparty to a child was allowed to obtain visitationdespite the fit parent’s objections. The majority opiniondid not apply let alone mention Troxel or the

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mandatory presumption that the fit legal parent hadacted in the child’s best interest. As the dissentexplained, the majority’s analysis contained "seriousconstitutional problems."); Robinson v. Ford-Robinson,2005 WL 1041158 (Ark. 2005) (An Arkansas fitbiological father objected to his ex-wife, not the motherto the child, obtaining visitation. The ArkansasSupreme Court held that the Troxel presumption thata fit legal parent acts in the child’s best interest didnot apply and that the rights of the step-parent wereequal to the fit biological parent under the in locoparentis doctrine.); C.E.W.v.D.E.W., 845 A.2d 1146,1151 (Me. 2004) (There was no mention of Troxel whenthe court explained that once a court determines thenon-parent qualifies as a de facto parent, the court isfree to award parental rights and responsibilities overthe objection of the biological parent.); Rideout v.Riendeau, 761 A.2d 291, 294, 297, 302 (Me. 2000)(Emotional bonds between grandparents and a childwere considered to provide "a compelling basis for thestate’s intervention into an intact family with fitparents."); S.F.v.M.D., 751 A.2d 9, 15 (Md. Ct. App.2000) (Without any consideration of the mandates ofTroxel to presume that the mother’s decision was inthe child’s best interest or any "special weight" givento the mother’s objection, the court granted theparamour equal status as parent.); Gestl v. Frederick,754 A.2d 1087 (Md. Ct. Spec. App. 2000) (The Courtfound Troxel provides some protection to fit parents,but does not prevent third-parties from obtainingcustodial rights); T.B.v.L.R.M., 786 A.2d 913,917 (Pa.2001) (The Court found the rights of non-parents maybe elevated to the same level as a fit legal parent.);Jones v. Jones, 884 A.2d 915 (Pa. Super. Ct. 2005)(Without mentioning Troxel, the Court found a non-parent may obtain custody by proving with clear and

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convincing evidence that the change is in the bestinterest of the child.); and Rubano v. DiCenzo, 759A.2d 959, 976 (R.I. 2000) (The existence of arelationship between the child and the third party wasfound to justify the state’s infringement on theparent’s due process rights.)

Too many states disregard the fit parents’constitutional right to parent his child in favor ofaccommodating third parties. Some suggest that a defacto parent automatically stands equal to a biologicalparent while others explain that a non-parent’semotional attachment to a child provides thecompelling interest necessary to overcome thebiological parents’ right to family autonomy andprivacy guaranteed by the Constitution. Whatever thereason, these states violate parents’ fundamental rightto direct their child’s care, and this court must act nowto prevent further deprivations.

II. PENNSYLVANIA’S IN LOCO PARENTISDOCTRINE VIOLATED FATHER’SFUNDAMENTAL RIGHT TO PARENT HISCHILD

Pennsylvania’s progressive expansion of thecommon law in loco parentis doctrine violates parents’constitutional rights. In Troxel, the United StatesSupreme Court upheld the striking of Washington’soverly broad grandparent visitation statute thatpermitted a trial court to grant visitation to anyperson at any time based solely on the trial court’sperception of the child’s best interest. This Court foundthe statute constitutionally offensive because itviolated the parent’s fundamental right guaranteed bythe Fourteenth Amendment to direct the care, custody

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and control of his child. Presently, Pennsylvania’s inloco parentis doctrine suffers from the sameconstitutional infirmity. Without respect for theparent’s fundamental right it permits a trial court togrant custody to any person claiming a relationshipwith the child. This can happen even if the third partyhas no biological ties to the child and even if the fitparent strongly objects to the third party’s interferencewith the parent/child relationship. Frequently, as inthe present case, the trial court exercises unfettereddiscretion and grants any third party, relative to thechild or not, custody of the child by substituting itsperception of the child’s best interest for the parent’sdetermination of the child’s best interest.

Pennsylvania’s in loco parentis doctrine used toprotect parents’ constitutional rights. Such is no longerthe case. The new, expanded in loco parentis doctrinedisregards set constitutional protections. An analysisof the pertinent cases shows that historically, to seekcustody of a child, a third party needed eitherstatutory standing or stood in loco parentis byassuming parental status and responsibilities with theconsent of the parent. See Krarner v. McMahon, 640A.2d 926 (Pa. Super. Ct. 1994) (The core concept wasthat persons other than biological parents are thirdparties for purposes of custody disputes.); Morgan v.Wiser, 923 A.2d 1183, 1187 (Pa. Super. Ct. 2007) (Inorder to protect the family and the parent/childrelationship, this doctrine firmly established that "athird party cannot place himself in loco parentis indefiance of the parents’ wishes and the parent/childrelationship."); and B.A. & A.A.v.E.E., 559 Pa. 545,550-551,741 A.2d 1227, 1230, (1999) (citing Gradwellv. Strausser, 610 A.2d 999, 1003 (Pa. Super. Ct. 1992))(Third parties could only assume parental status and

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responsibilities "as a result of the participation andacquiescence of the parents." J.F.v.D.B., 897 A.2d1261, 1227 (Pa. Super. Ct. 2006)).

Father and Mother decided to start a family andhave a baby together. K.D. never figured into thatequation; he was, and remains, a third party to theparent/child relationship. Father never authorizedK.D. to play an active role as a parent to O.H. Fathernever consented or acquiesced to K.D. performingparental duties, he never encouraged K.D. to act in aparental role, he did not introduce K.D. into the child’slife and he never permitted K.D. to direct the child’supbringing. K.D. clearly assumed parental statusagainst the wishes of the remaining parent.

K.D. never acted in a fashion other than, perhaps,a frequent caregiver. By his own admission, K.D. wasnever given permission to assume parental status ordischarge parental duties (R. 00841-43). While Motherwas alive, she, not K.D., exercised parental authorityover O.H. (R. 00845-46). Mother was primarilyresponsible for the child’s medical care. Further,Father remained a constant presence in O.H.’s life.Mother and Father, not K.D., oversaw the child’seducational progress (R. 00846, 01401). While it maybe true that K.D. did some activities with O.H. such asreading or occasionally helping with homework (R.00845), that level of involvement does not equate toassuming parental status.

After Mother died, the trial court’s Interim Orderthrust K.D. into the parental role (R. 00449-57).Father demonstrated his strong objection by filing anEmergency Petition for Special Relief (R. 00458-65).The record clearly establishes that K.D. placed himself

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in loco parentis in direct defiance of E.S.H.’s wishesand to the detriment of the parent/child relationship(R. 00846, 00118-20, 00841-43).

Because the traditional protections affordedparents’ constitutional rights are no longer applied,the Pennsylvania courts violated Father’sconstitutional rights by creating a new and overlybroad in loco parentis doctrine that allows any personat any time to take the parent’s place withoutproviding the necessary constitutional safeguards.

Without Pennsylvania’s radical departure from thecontrolling principle that parents enjoy a fundamentalright to parent their children, K.D. would not evenhave been allowed to adopt 0.H. because the fit parentnever relinquished his fundamental right to care forhis child. In essence, Pennsylvania’s refusal torecognize father’s fundamental rights gave K.D.squatter’s rights to another man’s child. This cannotstand.

Had the constitutional protections contained in thisintentionally narrow legal doctrine been properlyapplied, the lower courts would have determined thatK.D. could not and did not establish in loco parentisstanding prior to the custody action. However, becausethe courts expanded this narrow legal doctrine andrejected federal guidance regarding parents’fundamental rights, the immediate result was adecision that violates a fit parent’s fundamental rightto parent his child.

Such expansion invites bizarre consequences. If aparent’s paramour can so easily attain in loco parentisstatus over the second parent’s objections, no parent’s

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fundamental right is secure. Because many parentsoften cohabitate with multiple people throughout theirlives, it is foreseeable that every paramour with whoma parent lives or introduces into the child’s life, evenover the other parent’s objections, would establish inloco parentis status and stand equal with the parentsfor custody purposes. The argument that a court coulddetermine whether such an expanded number of"parents" is in the child’s best interest convenientlyignores the primary issue - the "child is not the merecreature of the State," Pierce, 268 U.S. 510,535 (1925),but has been entrusted to the parent who provided forand raised the child in ways the state cannot andshould not.

Permitting third parties with whom the child mayhave a relationship to seek custody of the childundermines and dilutes the parent’s rights. The trialcourt’s expansion of the in loco parentis doctrine is aviolation of the fit parent’s fundamental right toparent his child just as the overly broad WashingtonState statute violated Granville’s fundamental rights.Therefore, Father respectfully requests that this Courtgrant review, and upon review, reverse the decisions ofthe lower courts and restore the strict parameters ofthe in loco parentis doctrine.

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III. UNIFORM APPLICATION OF THEFOURTEENTH AMENDMENT’S DUEPROCESS CLAUSE REQUIRES THATBEFORE THE STATE’S COMPELLINGINTEREST IS TRIGGERED, THE STATEMUST ESTABLISH THAT THE PARENTHARMED THE CHILD

Through the years, this Court has clearlyarticulated that parents enjoy a fundamental right tothe care, custody and control of their children and ashowing of harm to the child is needed to trigger thestate’s compelling interest before curtailing thatfundamental right. Whether in the grandparentvisitation context or a non-grandparent third partycustody case, confusion abounds because parents’established fundamental right presumably requiresstrict scrutiny protection as do other fundamentalrights but Troxel provides no guidance. Troxel passedon providing a standard for protecting this right.

Because the decision from Pennsylvania’s appellatecourt is out of step with controlling federal authorityand because confusion and disparity exists among thevarious states, uniform application of the FourteenthAmendment’s Due Process Clause requires this Courtto declare that before the state’s compelling interest istriggered, the parent’s actions or inaction must beshown to result in harm to the child.

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A. Pennsylvania courts are out of step withconstitutional law which requires adetermination that the parent harmed thechild before triggering the state’scompelling interest.

More than eighty-five years ago, in Meyer v.Nebraska, 262 U.S. 390 (1923) this Court ruled thatthe Due Process Clause protects parents’ fundamentalright to raise their children and control their children’seducation. Id. at 399. This principle has been affirmedin numerous contexts. The state can interfere with thisfundamental right only "if it appears that the parentaldecisions will jeopardize the health or safety of thechild, or have a potential for significant socialburdens." Wisconsin v. Yoder, 406 U.S. 205,234 (1972).

Since Yoder, this Court has continued to hold thatwithout showing harm, third parties are not entitledto custody over parents. For instance, this Court hasheld that a child cannot be removed from a parent’shome to be adopted by another as long as the parentsare adequately providing for the child. "We have littledoubt that the Due Process Clause would be offended’if a State were to attempt to force the breakup of anatural family, over the objections of the parents andtheir children, without some showing of unfitness andfor the sole reason that to do so was thought to be inthe children’s best interest." Quilloin v. Walcott, 434U.S. 246, 255 (1978). Federal law does not authorize"unrelated persons to retain custody of a child whoseparents have not been found to be unfit," Deboer v.Deboer, 509 U.S. 1301, 1302 (1993). Additionally, "’thebest interests of the child’ is not the legal standardthat governs parents’ or guardians’ exercise of theircustody: so long as certain minimum requirements of

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child care are met, the interests of the child may besubordinated to the interests of other children, orindeed even to the interests of the parents orguardians themselves." Reno v. Flores, 507 U.S. 292,304 (1993) citing R.C.N.v. State, 141 Ga. App. 490,491,233 S.E.2d 866, 867 (1977).

Despite the wealth of federal guidance, thePennsylvania courts fail to consistently follow the lawand require a showing of harm before interfering witha parent’s fundamental right. In the instant matterneither the trial nor the appellate court applied theconstitutional requirements to Father’s fundamentalright to direct his child’s upbringing. In its ruling, thePennsylvania appellate court stated:

We further decline Father’s request to requirethat a third party must prove that a parent isunfit in order to gain custody over a parent. Asset forth above, the in loco parentis basis forstanding holds no such requirement. Moreover,our Supreme Court has consistently rejectedthis argument with respect to custodydetermination.

Superior Court opinion, App. A at 12a.

Because this Court has seen fit to protect parents’fundamental rights to parent the child by requiring ademonstration of harm, the Pennsylvania courts areout of step with required constitutional protections.

The progression of applicable case law establishesthat while the state has a compelling interest inprotecting the well-being of a child, that compellinginterest is not triggered unless there is some

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demonstrable harm that will befall the child if thecourt does not interfere with the parent’s fundamentalright, and then, courts may interfere only in the leastrestive way.

Troxel and the cases upon which its authority wasbased unquestionably established a parent’sfundamental right. Because the Pennsylvania courtsfailed to follow federal precedent, the decision cannotstand.

Because discord exists among the statesregarding whether a showing of harm isrequired to interfere with the parent/childrelationship, this Court must require auniform treatment of fundamental rights.

As noted above, several federal cases require thatin disputes between a parent and a third party, beforeinterfering with the parent/child relationship, harm tothe child must be shown. However, various statecourts routinely disregard this principle and employ asimple "best interest" analysis, treating parents andnon-parents alike.

Uniformity and equal treatment require that thisCourt intervene. The integrity of the family unit hasfound protection in the Due Process Clause of theFourteenth Amendment, Meyer v. Nebraska, 262 U.S.at 399 (1923), the Equal Protection Clause of theFourteenth Amendment, Skinner v. Oklahoma, 316U.S. at 541 (1942), and the Ninth Amendment,Griswold v. Connecticut, 381 U.S. 479, 496 (1965)(Goldberg, J., concurring), Stanley v. Illinois, 405 U.S.645, 651 (1972). The "Due Process Clause of the FifthAmendment guarantees every person the equal

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protection of the law ’which is essentially a directionthat all persons similarly situated should be treatedalike.’" Jankowski-Burczyk v. INS, 291 F.3d 172, 176(2d Cir. Conn. 2002), citing City of Cleburne v.Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 87 L. Ed.2d 313, 105 S. Ct. 3249 (1985)(citingPlyler v. Doe, 457U.S. 202, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982)).Given the substantial protections afforded parents’fundamental rights, equal protection demands uniformapplication of law regarding the triggering of thestate’s compelling interest. The level of protectiongiven a fit parent’s fundamental right to control orcare for his child cannot depend upon the whim of atrial court that refuses to follow federal precedent.

Many states do not require parental harm to thechild before interfering with the parent/childrelationship. See for instance: Vibbert v. Vibbert, 144S.W.3d 292 (Ky. App. Ct. 2004) (The Appeals Court ofKentucky discarded their standard for showing harmin non-parental visitation context calling the standard"unnecessarily strict and unworkable."); Downs v.Scheffier, 206 Ariz. 496, 502 (Ariz. 2004) ("It isinappropriate to defer an examination of the child’sbest interests until parental inappropriateness isestablished."); Harrold v. Collier, 107 Ohio St. 3d 44,2005 Ohio 5334, 836 N.E.2d 1165 (2005) (Ohioconsiders the child’s best interests as the paramountconcern and for its determination will consider fifteenfactors, only one of which is whether the parent everabused the child or caused harm to another familymember who is a party to the proceedings. Ohiobelieves this approach does not minimize the "specialweight" due to the wishes of a parent.) See also Stateex rel. Reeves v. O’Malley, 2001 Ohio App. LEXIS 2530(Ohio Ct. App., Cuyahoga County June 1, 2001) (citing

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Boyer v. Boyer, 46 Ohio St. 2d 83 (OH 1976) (Ohio heldin "determining who shall have the care, custody andcontrol of a child under eighteen years of age, eventhough the child’s parents are not found to be unfit orunsuitable, the court may commit the child to arelative when the court finds that custody to neitherparent is in the best interest of the child."); Brandon L.v. Moats, 209 W. Va 752, 551 S.E.2d 674 (W. Va. 2001)(West Virginia does not require a showing of unfitnessbefore interfering with the parent/child relationship,finding that due process concerns were satisfied bystatutory requirements that the court consider thechild’s best interests and minimize interference in theparent/child relationship.); Zeman v. Stanford, 789 So.2d 798, 804 (Miss. 2001) (There is no requirement offinding parental harm to the child before grandparentsmay obtain visitation, but factors in the court’s bestinterest approach include harm to the child ifvisitation with grandparents is denied.); aad RogerD.H. v. Virginia O. (In re Roger D.H.), 2002 WI App.35, 12 (Wis. Ct. App. 2002) (Wisconsin law (Stat.§ 767.245) "does not require a showing of parentalunfitness before a court may override a parent’sdecision regarding grandparent visitation, nor do wefind any case law from this state holding as much.There is no suggestion in Troxel that a court may onlyinterfere with a parent’s decision regarding visitationif the parent is shown to be unfit.")

In contrast, many other states’ highest courts havefollowed federal precedent and declined to awardcustody to third party over the parent absent ashowing of parental unfitness or harm to the child.This is because many states still respect controllingauthority and the principle that the best interests ofthe child is found within the custody and care of the

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parent.6 See e.g.: Askew v. Donoho, 993 S.W.2d 1(Tenn. 1999) (The "magnitude of a parent’sconstitutional right to rear and have custody of his orher children would necessitate a clear finding ofsubstantial harm."); Hawk v. Hawk, 855 S.W.2d 573,580 (Tenn. 1993) (The Court required "an initialshowing of harm.., before the state may intervene todetermine the ’best interests of the child.’"); Brooks v.Parkerson, 265 Ga. 189, 454 S.E.2d 769, at 774 (Ga.1995) ("IT]he ’best interest of the child’ standard doesnot come into play to permit interference with thecustody and control of the child, over parentalobjection, unless and until there is a showing of harmto the child."), cert. denied, 516 U.S. 942, 116 S. Ct.377, 133 L. Ed. 2d 301 (1995); In re Herbst, 1998 OK100, 971 P.2d 395, 399 (Okla. 1998) ("To reach theissue of a child’s best interests, there must be arequisite showing of harm, or threat of harm ....Absent a showing of harm (or threat thereof), it is notfor the state to choose which associations a familymust maintain and which the family is permitted toabandon."); and Williams v. Williams, 256 Va. 19, 501S.E.2d 417, 418 (Va. 1998) ("For the constitutionalrequirement to be satisfied, before visitation can beordered over the objection of the child’s parents, acourt must find an actual harm to the child’s health orwelfare without such visitation. A court reachesconsideration of the ’best interests’ standard indetermining visitation only after it finds harm ifvisitation is not ordered.").

6 See Appendix D for a list of states, with citations and pertinentlanguage.

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Several states have observed and noted thatTroxel’s refusal to require a showing of harm causesconfusion. "Moreover, after Troxel it appears thatfederal constitutional law in this area is now not aspredictable as it was before Troxel." DeRose v. DeRose,469 Mich. 320, 334 (Mich. 2003), or, as stated by NewJersey:

Courts across the country have wrestled withthe issue of grandparent visitation both beforeand after Troxel. In general, they have engagedin one of two modes of analysis: (1) interpretingthe statutes to require satisfaction of a harmstandard in order to overcome the presumptionin favor of a fit parent’s decision or (2) avoidingthe articulation of any standard at all andanalyzing the statutes on a case-by-case basis.Troxel implied that either approach would beacceptable.

Moriarty v. Bradt, 177 N.J. 84, at 109 (N.J. 2003)

Because there is disagreement among the statesregarding when and under what circumstances a stateor court may interfere with the parent’s fundamentalright to parent a child, this Court must definitivelyarticulate, in keeping with its earlier decisions, thatthe state’s compelling interest in protecting thewelfare of the child is not triggered unless there issome showing that the parent harmed or will harm thechild. This standard alone, equally applicable in allstates at all times, will preserve the longstandingfundamental liberty interest that this Court has soconsistently protected.

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CONCLUSION

This Honorable Court should grant Father’sPetition for Writ of Certiorari because the evidence isclear that Pennsylvania and other states do notimplement adequate protections for a parent’sfundamental right to parent his or her child.Pennsylvania’s overly broad in loco parentis doctrinedeprives parents of their rightful ability to care for andcontrol their children. Further, there is disparityamong the states regarding the requirement for ashowing of harm as a condition precedent fortriggering the state’s compelling interest. For thesereasons, this Honorable Court must summarily reversethe decision of the Pennsylvania courts and mustunambiguously hold that strict scrutiny must beapplied to deprivations of parents’ fundamental rightsand that harm to the child is a condition precedent totriggering the state’s compelling interest beforeinterfering with the parent/child relationship. Only inthis way will parents’ fundamental right to raise andcare for their children be protected.

Respectfully submitted,

Leonard G. Brown, IIICounsel of Record

David R. DyeClymer, Musser, Brown &Conrad, P.C.408 W. Chestnut St.Lancaster, PA 17603(717) 299-7101len@cmbclaw.com

Counsel for Petitioner E.S.H.