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ADOPTION CRYSTAL D.R. APPEAL KATHLEEN AND HAROLD R. (07/20/84)

filed: July 20, 1984.

IN RE ADOPTION OF CRYSTAL D.R. APPEAL OF KATHLEEN AND HAROLD R., NATURAL PARENTS


NO. 1658 PHILA. 1983, Appeal from the Order in the Court of Common Pleas of Berks County, Orphans

COUNSEL

Louis M. Shucker, Reading, for appellants.

John J. Speicher, Reading, for participating party.

Spaeth, President Judge, and Brosky and Hoffman, JJ.

Author: Spaeth

[ 331 Pa. Super. Page 502]

This is an appeal from an order terminating appellants' parental rights to their daughter, Crystal. The order was entered on a petition filed by Crystal's foster parents. We hold that with respect to a child entrusted to their care, foster parents have no standing to file a petition for termination of parental rights. We therefore reverse and remand for further proceedings.

Crystal was born August 4, 1974. On August 29, 1975, she was placed with Berks County Children and Youth Services as a dependent child. This was done on a petition filed by the agency. On August 24, 1976, the agency placed Crystal with appellees as foster parents. Appellees have had physical custody of Crystal since that time. The trial court found, and the record shows, that appellees have been "extraordinarily supportive" of Crystal, providing specialized care for certain physical and mental impairments, and

[ 331 Pa. Super. Page 503]

    that because of appellees' "care and attention . . . Crystal . . . has made marked progress physically, mentally and emotionally." Trial court slip op. at 4. On February 18, 1981, appellees filed a petition for termination of appellants' parental rights, and on March 16, 1981, they filed a report of their intention to adopt Crystal. On November 18, 1981, after hearing, the trial court entered a decree nisi terminating appellants' parental rights and awarding appellees custody of Crystal until such time as she was adopted. On June 6, 1983, the court entered an order dismissing appellants' exceptions and making its decree nisi final.

On appeal, appellants make several arguments, but we need consider only their argument that as foster parents, appellees had no standing to petition for termination of parental rights.*fn1

§ 2512(a) of the Adoption Act, Act of Oct. 15, 1980, P.L. 934, No. 163, § 1, 23 P.S. §§ 2101 et seq., provides who may file a petition for involuntary termination of parental rights:

(a) Who may file. -- A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:

(1) Either parent when termination is sought with respect to the other parent.

(2) An agency.

(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt). 23 P.S. § 2512(a).

Thus, appellees had no standing to file their petition to terminate appellants' parental rights unless they were "individual[s] having custody" of Crystal or "standing in loco parentis"*fn2 to Crystal.

[ 331 Pa. Super. Page 504]

(1) Appellees argue that their physical custody of Crystal is "custody(( within § 2512(a)(3). However, "custody" in § 2512(a)(3) refers to legal custody, not merely physical custody. § 2531(a) provides:

(a) General rule. -- Every person now having or hereafter receiving or retaining custody or physical care of any child for the purpose or with the intention of adopting a child under the age of 18 years shall report to the court in which the petition for adoption will be filed. (Emphasis added.)

§ 2531(b) provides, in part, that "[w]hen a person receives or retains custody or physical care of a child from an agency the report shall set forth . . . . ." It is apparent from these provisions that "custody" in § 2531 means "legal custody", for otherwise the term "physical care" would be surplusage. It follows that "custody" in § 2512 must also mean "legal custody". American Steel and Wire Company of N.J. v. Unemployment Compensation Board, 161 Pa. Super. 622, 56 A.2d 288 (1948) (word in one section of statute to be construed to mean same thing in another section of statute).

Appellees also argue that they have "standing in loco parentis" within § 2512(a)(3). This appears to be a question of first impression,*fn3 and yet we ...


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