J-A18014-23
2024 PA Super 45
IN THE INTEREST OF: S.W., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.E. AND A.E. : : Appellants : : : No. 22 WDA 2023
Appeal from the Order Entered November 8, 2022 In the Court of Common Pleas of Allegheny County Juvenile Division at No(s): CP-02-DP-0000729-2020
BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.
OPINION BY KUNSELMAN, J.: FILED: March 13, 2024
A.E. and A.E. (Appellants) are former foster parents who received
physical custody of S.W. (the Child) one month after her birth. They retained
custody for nearly two years as the dependency case played out between
W.W. (Mother) and the Allegheny County Office of Children, Youth and
Families (CYF).1 Although the termination of Mother’s rights was imminent,
CYF had second thoughts about the suitability of the Child’s placement with
Appellants. CYF petitioned for the removal of the Child from Appellants’ care,
and the juvenile court granted the request. Appellants sought the Child’s
return, but because they were not parties to the dependency proceedings,
they first had to motion to intervene.
Foster parents are generally prohibited from participating in dependency
proceedings, but there exists a judicially created exception to this rule –
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1 The Child’s birth father was unknown. J-A18014-23
namely, the “prospective adoptive parent exception.” See In the Interest
of M.R.F., III, 182 A.3d 1050, 1055-56 (Pa. Super. 2018). Under the
exception, if pre-adoptive foster parents demonstrate that they have a
legitimate expectation of adoption, then they may intervene in the
dependency proceedings to challenge the child’s removal. At the hearing to
establish whether Appellants met the prospective adoptive parent exception,
CYF argued to the juvenile court that the exception was abrogated by the
current iteration of the Juvenile Act. See 42 Pa.C.S.A. § 6336.1(a).
Persuaded by CYF’s argument, the juvenile court subsequently denied
Appellants’ motion to intervene. After careful review, we conclude that
M.R.F., III remains good law, that Appellants satisfied the prospective
adoptive parent exception, and thus the juvenile court erred when it denied
their motion to intervene. On remand, Appellants may intervene to seek the
Child’s return until such time that the proceedings culminate under
Pennsylvania Rule of Juvenile Court Procedure 1631 (“Termination of Court
Supervision”).
The relevant factual and procedural history is as follows. The Child was
born in September 2020. Mother and the Child came to the attention of CYF
approximately a month a later. CYF had received a report about Mother’s
mental health, and upon its investigation, CYF believed Mother could not care
for the infant Child. CYF obtained an emergency custody authorization to
remove the Child from Mother’s care. In October 2020, CYF (in conjunction
with the service provider, Pressley Ridge) had the Child placed in Appellants’
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care. The Child was adjudicated dependent under the Juvenile Act in
November 2020.
Over the next two years, the juvenile court conducted regular
permanency review hearings. On March 31, 2022, CYF petitioned to
involuntarily terminate Mother’s rights, pursuant to the Adoption Act. See 23
Pa.C.S.A. § 2511. The termination hearing was scheduled for August 26,
2022. But two weeks prior to that hearing, on August 12, 2022, CYF filed a
motion to remove the Child from the Appellants’ home. According to the
motion, CYF had concerns about the suitability of the Child’s placement.
Allegedly, Appellants used inappropriate language when talking about Mother;
they demanded a reduction in visits between Mother and the Child; they
changed the Child’s doctor, although they were told not to; and they were
combative and unwilling to cooperate with Pressley Ridge. The juvenile court
entered an order directing CYF to notify Appellants, in accordance with 42
Pa.C.S.A. § 6336.1(a) (providing foster parents with notice of a juvenile court
hearing and the right to be heard).
The juvenile court held a hearing on CYF’s motion on August 26, 2022,
the date originally set for the termination hearing, which had been continued.
Present were the dependency litigants: Mother’s counsel (Mother was not
present); a representative from CYF along with an assistant county solicitor;
and the Child’s guardian ad litem. Appellants were also present with counsel.
Prior to taking any testimony, the juvenile court addressed the issue of
standing and clarified whether Appellants sought to intervene in the
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dependency proceedings. Appellants explained they were not seeking to
intervene as parties, but that they opposed CYF’s motion and invoked their
right to be heard under Section 6336.1(a). At the conclusion of the hearing,
the juvenile court granted CYF’s request and removed the Child from
Appellants’ care. The Child was then placed with another foster family. The
change in placement occurred on September 6, 2022.
On September 13, 2022, Appellants filed a motion to intervene, seeking
the return of the Child. The juvenile court denied the motion without prejudice
for failure to conform with the Pennsylvania Rules of Juvenile Court Procedure
– namely Pa.R.J.C.P. 1133 (requiring would-be intervenors to state the
grounds on which intervention is sought). In October 2022, Appellants re-
filed their motion, accompanied with a memorandum of law. Appellants
alleged they were “prospective adoptive parents” and that they should be
permitted to become parties to the underlying dependency proceedings. On
October 26, 2022, the juvenile court held a hearing, and heard the legal
arguments from Appellants’ counsel, CYF, Mother’s counsel, and the Child’s
guardian ad litem. The juvenile court denied Appellants’ motion to intervene,
on the merits, by order dated November 8, 2022.
On December 8, 2022, Appellants filed a petition for permission to
appeal. On January 5, 2023, this Court directed that the petition for
permission to appeal be treated as a notice of appeal and assigned it docket
number. The next day, Appellants filed a concise statement of errors
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complained of on appeal. See Pa.R.A.P. 1925(a)(2); 905(a)(2); 906(a)(2).
The juvenile court issued a Rule 1925(a) opinion on February 17, 2023.
Meanwhile, the Child’s dependency proceedings had pressed on. The
Child never returned to Mother’s care but remained with the new pre-adoptive
foster parents. The court held a termination hearing in January 2023 and
terminated Mother’s rights by order entered on February 15, 2023. Mother
appealed the termination. Both appeals were pending before this Court. This
Court affirmed the termination of Mother’s rights on November 8, 2023.
In the instant appeal, Appellants present the following four issues for
our review, which we reorder for ease of disposition:
1. Whether the juvenile court erred or abused its discretion by not allowing Appellants to intervene in the dependency action?
2. Whether the juvenile court erred or abused its discretion by applying an orphans’ court rule/ definition in a juvenile court action?
3. Whether the juvenile court erred or abused its discretion by suggesting that the right to intervene was waived by the proposed intervenors?
4. Whether the juvenile court erred or abused its discretion by scheduling the matter only for argument and not for a hearing?
Appellants’ Brief at 9 (not paginated) (style adjusted).
In matters arising under the Adoption Act, “our plenary scope of review
is of the broadest type; that is, an appellate court is not bound by the trial
court’s inferences drawn from its findings of fact, and is compelled to perform
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a comprehensive review of the record for assurance the findings and credibility
determinations are competently supported.” Interest of K.N.L., 284 A.3d
121, 132-33 (Pa. 2022) (internal quotations and further citations omitted).
Moreover, Appellants’ four issues present legal questions, for which our review
is de novo. M.R.F. III, 182 A.3d at 1054.
Our discussion begins with Appellants’ first and second issues, which we
address contemporaneously. Appellants argue that the juvenile court erred
when it denied their motion to intervene. Appellants wanted to intervene in
the dependency proceedings so that they could petition for the return of the
Child they had been fostering – a Child that Appellants had intended to adopt
after Mother’s rights were terminated.
Under Pennsylvania law, only parties can participate in dependency
proceedings. The Juvenile Act does not define “party,” but our courts have
recognized parties as: (1) the parents of the child; (2) the legal custodian of
the child; or (3) the person whose care and control of the child is in question.
See, e.g., Interest of M.M., 302 A.3d 189, 199-200 (Pa. Super. 2023). Our
courts further recognized one exception that permits foster parents to
intervene in dependency proceedings in a very limited capacity.
Before addressing that exception, we discuss in detail the evolving role
of foster parents in dependency cases. Traditionally, foster parents were
forewarned that their place in the child’s life was only temporary, and that
they should not form emotional bonds, or have any expectation of adoption:
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Foster care has been defined as a “child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.” Smith v. Organization of Foster Families, 431 U.S. 816, 824 (1977) (citing Child Welfare League of America, Standards for Foster Family Care Service 5 (1959)).
The distinctive features of foster care are first, “‘that it is care in a family, it is noninstitutional substitute care,’” and second, “‘that it is for a planned period – either temporary or extended. This is unlike adoptive placement which implies a permanent substitution of one home for another.’” [Smith,] 413 U.S. at 824, citing A. Kadushin, Child Welfare Services 355 (1967).
Priester v. Fayette County Children and Youth Services, 512 A.2d 683
(Pa. Super. 1986) (emphasis original).
In Priester, this Court concluded that, given the temporary nature of
the foster care, the original foster parents lacked standing to challenge the
agency’s removal of the child and subsequent placement with new foster
parents. Priester, 512 A.2d at 685.
A few years later, this Court recognized the expectation created when
individuals care for a dependent child in anticipation of an adoption. In Mitch
v. Bucks County Children and Youth Social Service Agency, 556 A.2d
419, 423 (Pa. Super. 1989), the child was placed with the appellants through
a private organization that contracted with the local child protective services
agency. The agency then removed the child and placed him with another
family. The appellants sued for the child’s return. After considering decisions
from other states, we concluded that the appellants had standing to challenge
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the removal, because they were “prospective adoptive parents.” Mitch, 556
A.2d at 423.
Critically, we distinguished “prospective adoptive parents” from foster
parents to explain why they warranted standing:
[P]rospective adoptive parents, unlike foster parents, have an expectation of permanent custody which, though it may be contingent upon the agency's ultimate approval, is nevertheless genuine and reasonable. Because of this expectation of permanency, prospective adoptive parents are encouraged to form emotional bonds with the child from the first day of the placement. By removing the child from the care of the prospective adoptive parents, the agency forecloses the possibility of adoption. In light of the expectation of permanent custody that attends an adoptive placement, an agency's decision to remove a child constitutes a direct and substantial injury to prospective adoptive parents. Because prospective adoptive parents, unlike foster parents, suffer a direct and substantial injury when an agency removes a child from them, we see no reason in law or policy why we should limit their standing to sue for custody.
Mitch, 556 A.2d at 423 (emphasis added).
Under Mitch, prospective adoptive parents suffer a direct and
substantial injury when the child is removed and placed with new caregivers,
who are not the biological parents. They are “injured” because that removal
forecloses the possibility of future adoption – an adoption they reasonably
expected. This injury implicates traditional notions of standing, which enables
them to challenge the child’s removal. Mitch did not define when “prospective
adoptive parent” status attaches – i.e., before or after the termination of
parental rights. But under its facts, we noted that the prospective adoptive
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parents sought intervention after the rights of the biological parents were
terminated.
In re Griffin, 690 A.2d 1192, 1201 (Pa. Super. 1997), this Court
reiterated the difference between foster parents and “prospective adoptive
parents.” But we added that foster parents could become “prospective
adoptive parents” during dependency proceedings. See Griffin, 690 A.2d at
1201 (citing Mollander v. Chiodo, 675 A.2d 753, 757 (Pa. Super. 1996) and
In re: Baby Boy S., 615 A.2d 1355, 1357-58 (Pa. Super. 1992) aff’d per
curiam, 657 A.2d 484 (Pa. 1995)). In Griffin, the local protective services
agency sought to remove the children from the appellants’ care – again, after
the biological parent’s rights were terminated. We ruled that appellants had
standing under the “prospective adoptive parent” exception to challenge the
removal.
Significantly, in December 1998, after Mitch and Griffin were decided,
the Legislature enacted 42 Pa.C.S.A. § 6336.1. That statute explicitly
addressed foster parents’ ability to be heard in a dependency proceeding. The
statute has been amended several times, but Subsection (a) has largely
remained the same. The current iteration of Section 6336.1(a) provides:
(a) General rule.--The court shall direct the county agency or juvenile probation department to provide the child's foster parent, preadoptive parent or relative providing care for the child with timely notice of the hearing. The court shall provide the child's foster parent, preadoptive parent or relative providing care for the child the right to be heard at any hearing under this chapter. Unless a foster parent, preadoptive parent or relative providing care for a child has been awarded legal custody pursuant to section
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6357 (relating to rights and duties of legal custodian), nothing in this section shall give the foster parent, preadoptive parent or relative providing care for the child legal standing in the matter being heard by the court.
42 Pa.C.S.A. § 6336.1(a) (emphasis added).
To the extent that the terms “foster parent” and “pre-adoptive parent”
represent totally separate classes of individuals, as Mitch and Griffin suggest,
the plain language of the statute encapsulates both classes, and declares that
neither shall have standing in a dependency proceeding unless they had first
been awarded legal custody. (In dependency proceedings, the local child
protective services agency typically retains legal custody).
As noted, however, both Mitch and Griffin are cases where the
termination of parental rights had already occurred, and the dependency
proceedings were over. Thus, Mitch and Griffin do not conflict with Section
6336.1(a), if they are read to mean that prospective adoptive parents only
have standing to participate in the subsequent adoption proceedings.
Following Mitch, Griffin, and the enactment of Section 6336.1(a), our
courts had to resolve one question: Could the “prospective adoptive parent”
exception apply to foster parents in the midst of dependency proceedings, in
light of the plain language of 42 Pa.C.S.A. § 6336.1(a)?
This Court has applied Section 6336.1(a) on several occasions to rule
that foster parents lacked standing to intervene in dependency matters.
Indeed, an initial line of cases suggested that the Legislature foreclosed the
ability of any foster parents, in dependency proceedings, to challenge the
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removal of the child from their care. See, e.g., In re L.C., II, 900 A.2d 378,
381-82 (Pa. Super. 2006); see also In re J.S., 980 A.2d 117, 121 (Pa. Super.
2009).
Our decision in In re N.S., 845 A.2d 884, 887 (Pa. Super. 2004) was
the closest we came to holding that the prospective adoptive parent exception
was abrogated by statute. In N.S., the foster mother initially challenged the
removal of the child from her care, but she withdrew her appeal. Instead, she
sought visitation, relying on the “prospective adoptive parent” exception
under Mitch. We held that the foster mother merited no relief, because Mitch
was decided prior to the enactment of Section 6336.1 and because there was
never a pre-adoptive placement agreement, as there was in Mitch. See N.S.,
845 A.2d at 887.
Later, a subsequent line of cases suggested that the “prospective
adoptive parent” exception survived the statute’s enactment. See, e.g., In
re Adoption of B.R.S., 11 A.3d 541, 546 (Pa. Super. 2011) (observing that
the foster parents qualified as prospective adoptive parents, but this status
did not enable them to file their own petition to terminate a parent’s rights;
this status only allowed them to challenge the removal of the child from their
care); see also In re S.H.J., 78 A.3d 1158, 1162-63 (Pa. Super. 2013)
(opining that the appellant-aunt failed to preserve the issue of whether she
was a prospective adoptive parent but noting that she did not meet this status
in any event); and see In Interest of J.P., 178 A.3d. 861, 866-867 (Pa.
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Super. 2018) (noting that appellant did not preserve the question of whether
Section 6336.1(a) abrogated the prospective adoptive parent exception).
Ultimately, the most authoritative precedent we have on this issue is In
the Interest of M.R.F., III, 182 A.3d 1050 (Pa. Super. 2018). There, the
juvenile court denied the foster parents’ petition to intervene in the
dependency proceedings. We first explained that the foster parents were not
parties to the dependency proceedings, as contemplated by Section 6336.1(a)
or any other section of the Juvenile Act. M.R.F., III, 182 A.3d at 1055.
However, we then extended the “prospective adoptive parent” exception to
those proceedings.
“[O]ur case law has carved a narrow exception to permit the limited
participation of a foster resource who has attained the prospective-adoptive
status: prospective adoptive parents have standing to contest the child
welfare agency’s decision to remove a child it placed with them in anticipation
for adoption.” Id. at 1056 (citing Mitch, 556 A.2d at 423; Griffin, 690 A.2d
at 1201). We defined “prospective adoptive parents” as “a would-be parent
[who] has a legitimate, genuine, and reasonable expectation of adoption, even
though the authority to finalize the adoption is contingent upon the [] agency’s
ultimate approval.” Id. at 1054, n.2 (citing Griffin, supra). We concluded
that the child’s foster parents were prospective adoptive parents, thereby
entitling them to standing in the dependency action.
In M.R.F., III, the lower court initially followed Mitch and Griffin, and
ruled that the foster parents did not obtain prospective adoptive status,
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because the record was devoid of “any official action altering [their] status
from foster parents to pre-adoptive parents.” M.R.F., III, 182 A.3d at 1057
(quoting the trial court opinion).
On appeal, however, the M.R.F., III Court determined the certified
record belied the lower court’s conclusion that foster parents were not
“prospective adoptive parents.” Id. The facts showed, the foster parents
cared for the child practically since birth; the agency considered the foster
parents to be a pre-adoptive resource; the foster parents completed an
adoption program; although the permanency goal was still reunification, the
juvenile court pursued the concurrent goal of adoption; and the local
protective services agency supported the potential adoption. See id. We
discounted that the child was not immediately eligible for adoption (because
the parental rights remained intact) and that the juvenile court never formally
recognized the foster parents’ change in status. See id.
Notwithstanding the foster parents’ “prospective adoptive” status, we
held that the juvenile court was right to deny their petition to intervene
because of the relief they were seeking. The foster parents sought to
intervene only to challenge the court’s decision to increase the number of
visits between the mother and the child. We held that such a request was
beyond the scope of the prospective adoptive parent exception, which grants
foster parents standing to challenge only the removal of the child from their
home. Id. at 1059. In other words, prospective adoptive parents can
challenge the court’s decision only as it affects their interest in adoption vis-
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à-vis other foster placements, and not as it affects the rights of the biological
parents. Id.
In essence, our decision in M.R.F., III affirmed what our decisions in
B.R.S. and S.H.J., supra suggested – namely: the “prospective adoptive
parent” exception survived the enactment of Section 6336.1(a); that the
exception is available to foster parents involved in dependency proceedings,
who have prospective adoptive status; but that this standing is only for a
limited purpose. Because prospective adoptive parent standing does not
permit intervention in the dependency proceedings across the board, M.R.F.,
III tried to reconcile the judicially created standing exception with the plain
language of Section 6336.1(a).
Two years later, another panel of this Court held, in a non-precedential
decision, that the Juvenile Act abrogated the “prospective adoptive parent”
exception. Interest of K.R., 239 A.3d 70 (Table), 2020 WL 3989162 (Pa.
Super. 2020). There, the local child protective services agency removed the
child from the foster parent’s care after receiving reports that other children
in the home were abused. The foster parent, who had been a pre-adoptive
resource for two years, sought to challenge the removal, but the juvenile court
ruled that she lacked standing. The foster parent appealed. We first
observed, as we did in M.R.F., III, that foster parents generally do not qualify
as parties. See K.R. at *4.
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But the Court in K.R. went a step further, and ruled that Section
6336.1(a) has abrogated the “prospective adoptive parent” exception
altogether:
Prior to the enactment of Section 6336.1(a), our case law provided that a “prospective adoptive parent” possessed standing for the limited purpose of challenging the removal of a child from his or her care. See Mitch v. Bucks County Children and Youth Social Service Agency, 556 A.2d 419 (Pa. Super. 1989), appeal denied, 571 A.2d 383 (Pa. 1989); In re Griffin, 690 A.2d 1192 (Pa. Super. 1997), appeal denied, 700 A.2d 441 (Pa. 1997), certiorari denied, 523 U.S. 1004 (1998). Because Section 6336.1(a) plainly changes this prior case law, we conclude that a foster parent is not entitled to any form of standing in a dependency proceeding absent an award of legal custody, regardless of his or her “prospective adoptive” status.
K.R., at *5, n.7.
For the Court in K.R. to reach this holding, however, it had to account
for our opinion in M.R.F., III, which was decided after Section 6336.1(a) was
enacted. To do so, the K.R. Court concluded that the language concerning
the “prospective adoptive parent” exception was mere dicta and not a barrier
to its holding. See K.R., at *5, n.7. Ultimately, the Court ruled that the foster
parent lacked standing to contest the removal of the Child.
Returning to the instant matter, the litigants and juvenile court
struggled with what to make of our fractured jurisprudence. When CYF
informed the juvenile court that it wanted to end the Child’s placement with
Appellants, Appellants did not officially seek to intervene. Instead, Appellants
challenged the removal only insofar as Section 6336.1(a) would permit –
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which was to attend the hearing and be heard. Only after the removal did the
Appellants seek to formally intervene. During the ensuing argument hearing
on intervention, the juvenile court repeatedly pressed the litigants for their
understanding of the prospective adoptive parent exception, but none could
offer much clarity. Ultimately, the juvenile court was persuaded by CYF’s
position that the prospective adoptive parent exception was abrogated by
Section 6336.1(a), and that M.R.F. III was inapposite in light of K.R.
Thus, the first question – indeed, the essential question – we must
decide is whether M.R.F. III is binding on this Court. The answer to that
question rests on two axioms. First, a panel of the Superior Court cannot
overrule another panel of the Superior Court. See, e.g., Commonwealth v.
Beck, 78 A.3d 656, 659 (Pa. Super. 2013). Second, a non-precedential
decision (formerly titled unpublished memoranda decisions) holds persuasive,
but non-binding, authority. See, e.g., E.C.S. v. M.C.S., 256 A.3d 449, 456
(Pa. Super. 2021); see also 210 Pa. Code. § 65.37; and see Pa.R.A.P.
126(b).
Put plainly, K.R. was bound by M.R.F., III and could not overrule it.
However, K.R. could distinguish M.R.F., III, and in its view, the K.R. Court
did so by holding that the prospective adoptive parent exception analysis in
M.R.F., III was dicta. Because K.R. is non-precedential, this Panel is not
bound by K.R.’s interpretation of M.R.F., III. We may decide the dicta
question for ourselves.
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Our Supreme Court has defined obiter dictum (dicta being the plural)
as: “A judicial comment made while delivering a judicial opinion, but one that
is unnecessary to the decision in the case and therefore not precedential
(although it may be considered persuasive).” Commonwealth v. Romero,
183 A.3d 364, 400 n.18 (Pa. 2018) (Opinion Announcing Judgment of the
Court) (quoting BLACK’S LAW DICTIONARY 1240 (10th ed. 2014); id. cf.
“holding.” BLACK’S LAW DICTIONARY 849 (10th ed. 2014) (“A court’s
determination of a matter of law pivotal to its decision; a principle drawn from
such a decision.”).
Although we have significant misgivings about the prospective adoptive
parent exception in dependency proceedings (discussed infra), the
conclusions in M.R.F., III, regarding the exception were not mere dicta, but
central to its holding. M.R.F., III held that the foster parents in that case
met the prospective adoptive parent exception, full stop. That determination
meant the exception survived the enactment of Section 6336.1(a) and that
foster parents have standing in dependency proceedings for a limited purpose.
This was the first part of the Court’s holding.
The Court only denied the foster parents’ intervention, because of the
type of relief they requested. The foster parents sought to employ the
exception only to limit visitation between the mother and the dependent child.
This additional aspect of the holding did not render the initial standing
determination “a passing comment” which was “unnecessary to the decision.”
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Rather, the Court concluded that the foster parents had standing to intervene
but could not seek the relief they requested.
The determination that the foster parents met the prospective adoptive
parent exception was a “determination of a matter of law pivotal to its
decision;” it was “a holding,” which binds other three-judge panels of this
Court. Beck, supra. Put plainly, M.R.F., III remains good law, and we are
bound by its determination. Because K.R. was a non-precedential decision,
we are not confronted with a split of authority within our Court.
Nonetheless, we doubt the holding in M.R.F., III could withstand a
closer examination by higher authorities, and we feel compelled to address
these concerns. There are two reasons for our doubt.
First, we question whether the plain language of Section 6336.1(a) could
permit the exception. The panel in M.R.F., III was not directly confronted
with the question of whether the exception was abrogated by statute. When
faced with that question squarely, it would seem that Section 6336.1(a)
plainly disallows standing to any foster parent, pre-adoptive parent, or relative
providing care to the child, at least when it comes to the dependency
proceedings – that is, there should be no exception to non-party standing
while a parent’s rights remain intact. As a matter of statutory construction,
Section 6336.1(a) appears fairly unambiguous insofar as it simply does not
grant foster parents – or pre-adoptive parents – any standing in any juvenile
matter unless they have been awarded legal custody. Under this provision,
foster parents in dependency proceedings are entitled to notice of the hearing,
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and they are entitled to be heard, but that would appear to be the extent of
their rights.2
Second, we doubt that a foster parent’s interest in a potential adoption
could be superlative to the rights of parents or to the duty of local child
protective services agencies to reunify families. As the law stands today,
foster parents who achieve prospective adoptive status are entitled to
intervene only to protect their interest in a potential adoption. We noted
supra that their “standing” comes from the injury they would sustain if their
bond with the foster child were severed.
By extending the holdings of Mitch and Griffin to foster parents
involved in dependency proceedings, M.R.F., III implicitly3 recognized the
shift in how our society has come to understand the role of foster parents.
The notion that foster parents do not – or should not – return the emotional
bonds with the foster children is archaic and incompatible with our juvenile
law’s modern approach of concurrent permanency-goal planning (e.g.,
parental reunification and foster parent adoption). See Priester, 512 A.2d ____________________________________________
2 These rights should not be understated. The foster parents’ views during the dependency proceedings are integral to the juvenile court’s understanding of the child’s best interests. The foster parents’ involvement in these hearings also helps the court understand whether the foster parents could be a viable pre-adoption resource. However, these rights are limited to notice and participation as a fact-witness, not as a party to the dependency proceedings (discussed infra).
3 Here, too, we note that the panel in M.R.F., III was not directly confronted
with the question of whether the prospective adoptive parent exception should be extended to dependency proceedings, but that was certainly the effect of its decision.
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683 (citing Child Welfare League of America, Standards for Foster Family Care
Service 5 (1959)); cf. In re R.J.T., 9 A.3d 1179, 1191 n.14 (Pa. 2010)
(observing that the Pennsylvania Dependency Benchbook recommends
concurrent planning as a “best practice.”); see also In the Interest of K.T.,
296 A.3d 1085, 1105-1106 (Pa. 2023) (requiring courts to consider whether
the child is in a pre-adoptive foster home and has a bond with the foster
parents when deciding whether to involuntarily terminate a parents rights
under 23 Pa.C.S.A. § 2511(b)).
Additionally, the outdated expectation that foster parents should not
become attached to foster children conflicts with the current government
policy encouraging bonding between foster parents and the children. See
Pennsylvania Needs Foster Families, Pa. Dep’t. Human Servs. (last visited Feb.
21, 2024) https://www.dhs.pa.gov/AdoptPAkids/Pages/Foster-Parent.aspx
(stating “By bonding with their foster families, the child will be better prepared
for life’s ups and downs because they were loved and cared for by everyone
involved in their care.”).
To be sure, we are profoundly sympathetic to the emotional bonds that
develop between foster parents and the children in their care. The children
often refer to their foster parents as “mom and dad,” and they consider the
other children in the home to be their siblings. To that end, our laws have
repeatedly and thoroughly stressed how stability is vital to the healthy
development of a child. See In re D.C.D., 105 A.3d 662, 676 (Pa. 2014)
(“[I]t is beyond cavil that the protection of children, and in particular the need
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to provide permanency for dependent children, is a compelling state
interest.”); see also In re T.S.M., 71 A.3d 251, 257, n.14 (Pa. 2013)
(discussing the dangers of “foster care drift”); and see 23 Pa.C.S.A. §
5328(a)(4), (9) (identifying stability factors to consider when awarding
custody under the Child Custody Act).
Ironically, foster parents sacrifice their own sense of stability so that the
children might have the same. They must love the children as any parent
would love their child, without reservation, while knowing full well that the
court may order reunification with the biological parent at any point. Foster
parents may exist in this limbo for years. Given the shortage of foster parents,
providing these individuals a modicum of assurance might be for the
betterment of all.
However, public policy questions must be left to our Legislature and our
Supreme Court. See, e.g., Z.F.1 by & through Parent v. Bethanna, 244
A.3d 482, 494 (Pa. Super. 2020). And notwithstanding the emotional bond
between pre-adoptive foster parents and the child in their care, we question
whether the prospective adoptive parent’s "legitimate expectation” interest
could survive constitutional scrutiny.4 We also question whether the ____________________________________________
4 The government – by way of the local child protective services agency – may
narrowly infringe upon the parent’s constitutional right to the care, custody, and control of the child, because it has a compelling state interest – namely, the protection and stability of the child. See, e.g., In re D.C.D., 105 A.3d 662, 676-77 (Pa. 2014).
(Footnote Continued Next Page)
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prospective adoptive parent’s interest in adoption could be superlative to the
local child protective agency’s duty to exercise reasonable efforts to achieve
parental reunification. “[T]he Legislature has provided that the relationship
between the foster parents and the child is by its very nature subordinate
both to the relationship between the agency and the child and to the
relationship between the child and the child’s parents.” In re Adoption of
Crystal D.R., 480 A.2d 1146, 1150 (Pa. Super. 1984) (emphasis added); see
also In re G.C., 735 A.2d 1226, 1228 (Pa. 1999) (Opinion in Support of
Affirmance). Juvenile courts and local protective services agencies must be
free to navigate parental reunification without interference from non-parties,
even as they identify and implement a concurrent adoption goal. This has
always been the intention of the Legislature, which is why, one could assume,
it enacted Section 6336.1(a).
The prospective adoptive parent exception might also infringe upon a parent’s rights – assuming that the parent’s rights are still intact. See, e.g., D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016); see also U.S. CONST. amend. XIV, § 1 (forbidding states from depriving “any person of life, liberty, or property, without due process of law,” or from denying to any person within their jurisdiction “the equal protection of the law”).
Some might question the constitutionality of the prospective adoptive parent exception as applied to foster parents involved in dependency proceedings; for how can foster parents assert a “pre-adoptive” interest to a child, when parental reunification is a permanency goal. And although the need to provide the child stability is a compelling state interest, ultimately the courts might have to decide whether the preservation of foster parents’ legitimate expectation of adoption is narrowly tailored to advance that interest.
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Ultimately, these concerns are not presently before us. Whether there
is a conflict between M.R.F., III and Section 6336.1(a), or whether M.R.F.,
III was wrongly decided are questions that can only be answered by an en
banc panel of this Court or our Supreme Court. At this point, we are bound
by M.R.F., III.
Constrained to apply M.R.F., III, it is obvious that Appellants met the
prospective adoptive parent exception. A proper inquiry requires courts to
take an objective view of the full record and determine whether the foster
parents had a legitimate expectation of adopting the Child. M.R.F., III, 182
A.3d at 1057. The “legitimate, genuine, reasonable expectation of
adoption” is the polestar, not whether the foster parents were formally
recognized as “prospective adoptive” foster parents, either by the court or by
the agency. See id. at 1054, n.2. The foster parents’ “legitimate expectation”
is what encourages foster parents to “form emotional bonds with the child.”
Id. at 1056 (citing Mitch, supra at 419; Griffin, supra at 1201). When an
agency removes the child, the possibility of the adoption is foreclosed, and
those bonds are severed. Id. This is a “direct and substantial injury” that
warrants standing. It starts with the “legitimate expectation” of adoption.
The inquiry is an objective one; we clarified the foster parents’ subjective
beliefs are immaterial, but, so too, is the lack of any formal designation. Id.
at 1057.
When considering the full record here, it is evident Appellants had a
legitimate expectation of adoption, contingent upon the termination of
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Mother’s rights; thus, Appellants were “prospective adoptive parents.” Like
M.R.F., III, Appellants had fostered the Child practically since birth. 5 Also
like M.R.F., III, CYF started taking action to facilitate the post-termination
adoption. The caseworker advised Appellants they were the only prospective
adoptive resource. Appellants were assigned a separate “adoption
caseworker,” evincing CYF’s belief that Appellants would adopt. Appellants
began filling out the necessary paperwork. Pressley Ridge, the service
provider, was also in favor of the Appellants’ potential adoption. Appellants
began discussing with the caseworkers whether they would enter into a
voluntary post-adoption contact agreement with the Child’s biological family.
Whether there was a formal recognition of pre-adoptive status (like in Griffin)
or an adoption agreement (like in Mitch) are perhaps sufficient facts, in an
objective inquiry, to demonstrate a legitimate expectation of adoption. But
the absence of those facts is not dispositive. See id.
CYF counters that Appellants could not have an expectation of adoption,
because reunification remained the permanency goal of the dependency
proceedings. We are not persuaded by this argument for several reasons. For
one, M.R.F., III held that foster parents could still have a legitimate
expectation of adoption, even when the parental rights remain intact – indeed,
5 In M.R.F., III, the child entered the home of his foster parents when he was
four months old and had been nearly four years old at the time of our decision. Here, the subject Child entered Appellants’ care in October 2020 when she was one month old and resided with Appellants until September 2022.
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even when the visits between the parent and the child increase. See M.R.F.,
III, 182 A.3d at 1058. Moreover, even though the permanency goal was still
reunification, CYF and the juvenile court anticipated that Mother’s rights would
eventually be terminated. CYF filed its petition to terminate Mother’s rights in
March 2022, and the juvenile court had scheduled a goal change hearing for
May 2022, both of which were months before CYF decided to remove the Child
from Appellants’ care. Indeed, the August 2022 removal hearing was held on
the date that initially had been reserved for the termination hearing.
Two years into the Child’s dependency case, where Appellants had been
the caregivers since the Child was a newborn, it strains credulity to believe
that CYF did not consider Appellants to be the pre-adoptive resource (let alone
a pre-adoptive resource). Under these facts, Appellants had a legitimate,
genuine, and reasonable expectation that they would eventually adopt the
Child, if and when Mother’s rights were terminated. Therefore, they
established that they met the prospective adoptive parent exception, as set
forth in M.R.F., III, and we must conclude the juvenile court erred when it
denied their motion to intervene.6
6 Significantly, the issue of intervention is wholly different than the substantive
question about whether the Child should have been removed from – or returned to – Appellants’ care. The only question at that juncture was whether Appellants had a legitimate, genuine, and reasonable expectation that they would eventually adopt the Child. If so, then they had standing to pass through the courthouse doors and challenge the removal.
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Having addressed Appellants’ first two issues on appeal, and we proceed
to the third issue: whether the juvenile court erred or abused its discretion by
suggesting that Appellants waived their right to intervene. Preliminarily, we
note that although the juvenile court suggested waiver, it did not deny
intervention on this basis.7
We recognize that the juvenile court held an evidentiary hearing on
August 26, 2022 to determine whether the Child should be removed from
Appellants’ care. Appellants were present with counsel, but they conceded
they were not parties and they explicitly said they were not presently seeking
to intervene. See generally N.T., 8/26/22, at 8-12. Because Appellants
were not parties to the dependency proceeding, their rights were limited to
notice and to being heard, pursuant to Section 6336.1(a). Appellants could
not make objections, they could not introduce evidence, nor could they cross-
examine witnesses. See M.R.F., 182 A.3d at 1055. Indeed, the juvenile
However, we emphasize that the standing inquiry is a legal question that is “independent of the best-interests considerations.” M.R.F., III, 182 A.3d at 1057. Appellants met the standing threshold, but regarding the relief sought, deference is given to the lower court’s “longitudinal understanding” of its dependency case and the best interests of the Child involved. See R.J.T., 9 A.3d at 1190.
7 Our learned colleague in Dissent, who has joined our analysis thus far, would
conclude that Appellants waived their right to intervene. See generally Dissenting Opinion at 1-8. The Dissent believes that Appellants slept on their rights when they explicitly told the juvenile court, at the removal hearing, that they did not seek to intervene in the dependency proceedings as parties. Id. at 3-4 (citing N.T., 8/26/22, at 6-12).
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court directed Appellants’ counsel to keep Appellants’ testimony brief.8 Only
later, after the removal, did Appellants seek to intervene to have the Child
returned.
Critically, the Rules of Juvenile Court Procedure do not require
intervention at the earliest opportunity. The Juvenile Rules only dictate the
contents of a motion to intervene and require the court to hold a hearing on
the motion. See Pa.R.J.C.P. 1133. The Rules of Civil Procedure provide for
intervention at any time during the pendency of an action. See P.R.C.P. 2327
(“Who May Intervene”). “At any time during the pendency of an action, a
person not a party thereto shall be permitted to intervene therein, subject to
these rules if… (4) the determination of such action may affect any legally
enforceable interest of such person whether or not such person may be bound
by bound by judgment in the action.” Pa.R.C.P. 2327(4).
Perhaps it would have been prudent for Appellants to seek intervention
immediately in August 2022. Hindsight is 20/20, of course. Appellants opted
instead to rely on their right to be heard, per Section 6336.1(a). The path
they chose was initially more conservative, more efficient, and almost
certainly less expensive. Had they successfully persuaded the juvenile court
to deny CYF’s request to remove the Child, then intervention would have been
8 We cannot say that the juvenile court’s curtailment of the Appellants’ testimony was a violation of their right – as foster parents – to be heard under Section 6336.1(a). We mention the curtailment, however, to emphasize that Appellants were mere-fact witnesses. They could not present a full case-in- chief as to why the Child should remain in their care.
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unnecessary. But even though Appellants could have intervened sooner to
prevent the Child’s removal, it does not follow that they slept on their right to
intervene later to seek the Child’s return.
Appellants’ final issue is whether the juvenile court erred when it failed
to hold an evidentiary hearing on the motion to intervene. The Rules of
Juvenile Court Procedure require courts to hold a hearing on a motion to
intervene. See Pa.R.J.C.P. 1133(b). Moreover, we have held that
“intervention” and “standing” are used interchangeably in the context of
dependency proceedings. M.R.F., III, 182 A.3d at 1055. Although an
evidentiary hearing is typically required to establish standing, the necessity of
such a hearing depends on whether the facts are actually in dispute. See,
e.g., Raymond v. Raymond, 279 A.3d 620, 626-67 (Pa. Super. 2022)
(holding that the trial court was not required to conduct an evidentiary hearing
on standing, where the essential facts were not in dispute).
Appellants’ factual averments were largely uncontested by CYF. To be
sure, CYF and Appellants certainly disagreed as to whether the Child’s removal
was justified, but there appeared to be no genuine dispute of material fact
regarding their “pre-adoptive” status. CYF simply relied on K.R. and took the
position that the legal definition of “prospective adoptive parent” was
irrelevant because Section 6336.1(a) of the Juvenile Act abrogated the
“prospective adoptive parent” exception. Thus, the question before the
juvenile court was a legal one. Given the context of this case, the court did
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not err when it failed to hold an evidentiary hearing, but instead proceeded
by way of legal argument.
As a final note, we clarify the effect of our decision. Although Appellants
demonstrated under M.R.F., III that could intervene in the proceedings, we
must recognize the realty that those proceedings are concluding, and that
intervention is nearly moot.9 Appellants sought to intervene in the
dependency proceedings shortly after the Child’s removal. While the appeal
on their intervention was pending, the orphans’ court terminated Mother’s
rights, as well as the rights of the “Unknown Father.” Mother appealed the
termination, and this Court recently affirmed the orphans’ court’s decision.
See Interest of S.W., 2023 WL 7409888 (Pa. Super. November 8, 2023).
We assume adoption proceedings between CYF, the Child, and her new
prospective adoptive foster parents will transpire imminently. But until court
supervision has been terminated, per Pennsylvania Rule of Juvenile Court
Procedure 1631(a), the effect of our decision means that Appellants can
technically still seek the return of the Child.10 ____________________________________________
9 “An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect.” Interest of D.R.-W., 227 A.3d 905, 917 (Pa. Super. 2020) (quoting In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002)); see also E.B. v. D.B., 209 A.3d 451, 466 (Pa. Super. 2019) (holding we cannot vacate an erroneous interim custody order; “This is tantamount to ‘unringing the bell’ and rewinding the past two years of [the child’s] life as if they never happened.”). 10 See, e.g., Pa.R.J.C.P. 1631(a)(4) (providing that court supervision terminates “when court-ordered services from the county agency are no (Footnote Continued Next Page)
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We reiterate that our decision concerns the Appellants’ ability to
intervene in the dependency proceedings; it does not concern whether it is in
the best interests of the Child to return to Appellants’ care. Appellants must
also understand that it is beyond the power of the appellate courts to “unring
the bell” or rewind the Child’s life. See E.B., supra. Lastly, we acknowledge
Appellants only wanted to intervene in the dependency proceedings so they
could adopt the Child after Mother’s rights were terminated. Whether
Appellants can rely on their “prospective adoptive parent” status to file a
competing adoption petition is a separate question. See Griffin,, 690 A.2d
at 1197, 1199 (appellants’ “prospective adoptive parent” status, obtained
during the dependency stage, was asserted post-termination to challenge the
child’s removal); but see Interest of K.N.L., 284 A.3d 121, 147 (Pa. 2022)
(distinguishing foster parents from “prospective adoptive parents,” who have
standing to seek adoption, because “prospective adoptive parents” have in
loco parentis standing whereas foster parents typically do not) (citing Mitch,
556 A.2d at 422-23); and see N.S., 845 A.2d at 886-87 (holding that former
foster mother lacked in loco parentis standing to petition for adoption). As
this question is not before us, we make no comment on whether Appellants
can rely on their status as “prospective adoptive parents” to seek the adoption
of the Child. See Sichelstiel v. Sichelstiel, 272 A.3d 530, 539 (Pa. Super.
longer needed” and, inter alia, “the child has been adopted and services are no longer needed”); but see generally Pa.R.J.C.P. 1631(a)(1)-(13); Comment.
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2022) (holding that courts may not render decisions in the abstract or offer
purely advisory opinions).
To conclude: we are constrained to apply M.R.F., III, and under that
precedent, Appellants met the prospective adoptive parent exception. Thus,
the juvenile court erred when it denied Appellant’s petition to intervene. We
conclude further that Appellants did not waive their ability to seek intervention
by waiting until after the Child was removed from their care. Upon remand,
Appellants may intervene in the dependency proceedings to seek the Child’s
return, until such time as those proceedings culminate under Pa.R.J.C.P. 1631.
Under the facts of this case, the juvenile court did not err when it held an oral
argument on Appellants’ motion to intervene, without conducting an
evidentiary hearing. Finally, we make no comment as to whether it would be
in the Child’s best interests to return to Appellants’ care, nor do we comment
as to whether Appellants could file a competing adoption petition.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judge Lazarus files a Concurring Opinion.
P.J.E. Bender files a Dissenting Opinion.
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3/13/2024
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