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JOSEPH MITCH SHERRY DEAN AND MARTIN DEAN v. BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY. APPEAL SHERRY DEAN AND MARTIN DEAN (03/29/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 29, 1989.

IN RE JOSEPH MITCH SHERRY DEAN AND MARTIN DEAN
v.
BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY. APPEAL OF SHERRY DEAN AND MARTIN DEAN

Appeal from the Order entered February 26, 1988 in the Court of Common Pleas of Bucks County, Family Division, at No. 75 CW 1983.

COUNSEL

Donald B. Swope, York, for appellants.

Joshua Z. Goldblum, Levittown, for appellee.

Montemuro, Popovich and Hoffman, JJ. Popovich, J. files a dissenting statement.

Author: Hoffman

[ 383 Pa. Super. Page 43]

This appeal is from the order below dismissing appellants' petition for custody. The sole issue raised for our review is one of first impression: whether prospective adoptive parents have standing to contest the decision of the legal custodian, a child welfare agency, to remove from their custody a child placed with them for adoption. For the reasons set forth below, we conclude that prospective adoptive parents do have standing to petition for custody and, accordingly, we reverse the order below and remand for proceedings consistent with this Opinion.

The child in question, Joseph Mitch, was born in August, 1974. On July 12, 1983, Joseph was found to be a dependent child and was placed in the temporary legal custody of the Bucks County Children and Youth Social Services Agency [hereinafter "Children and Youth"]. On January 9, 1986, in response to a petition by Children and Youth, the parental rights of Joseph's biological parents were terminated.

Thereafter, on March 21, 1986, Children and Youth placed Joseph with appellants, Sherry and Martin Dean, for adoption. This placement was obtained by Children and Youth Services through Welcome House, which acted as an intermediary between appellants and Children and Youth. Prior to Joseph's placement, appellants had entered into a service agreement with Welcome House. The agreement listed the responsibilities of Welcome House as an intermediary adoption placement service and those of appellants as "prospective adoptive" parents. Appellants also entered into an "Adoptive Placement Agreement" with Children and Youth.*fn1 Joseph remained with appellants continuously until

[ 383 Pa. Super. Page 44]

May 5, 1987, at which time he was admitted to Philhaven Hospital as an inpatient for psychological evaluations. Joseph was admitted by appellants at the behest of Children and Youth.

On June 5, 1987, Children and Youth terminated Joseph's placement with appellants and notified appellants of the termination by letter. In response, appellants requested a hearing with Children and Youth regarding its decision. This request was rejected.*fn2

On July 7, 1987, appellants filed a Petition to Show Cause why Joseph should not be returned to them and the Orphans'

[ 383 Pa. Super. Page 45]

Court entered a rule to show cause upon Children and Youth. On August 28, 1987, the case was transferred to the Juvenile Court Division of the Court of Common Pleas. Children and Youth then filed an answer to appellants' petition as well as a motion to dismiss the petition for lack of standing. The parties filed a joint stipulation of facts and separate memoranda of law on their respective positions. On February 26, 1988, the court dismissed the petition based on its determination that appellants lacked standing to petition for a return of custody. This appeal followed.

The reasoning behind the trial court's ruling was as follows. The court first observed that, although the precise question of prospective adoptive parents' standing had never been decided, this Court has held that foster parents do not have standing to seek termination of parental rights, see In re Adoption of Crystal D.R., 331 Pa. Super. 501, 480 A.2d 1146 (1984) (construing Adoption Act), adoption, see In re Adoption of S.C.P., 364 Pa. Super. 257, 527 A.2d 1052 (1987) (construing Adoption Act), or custody, see Priester v. Fayette County Children & Youth Services, 354 Pa. Super. 562, 512 A.2d 683 (1986). The court then noted that it was impossible for appellants to adopt Joseph because Children and Youth, as Joseph's custodian, would first have to consent, and "[i]t is clear on this record that Children & Youth will no longer consent to this adoption." Trial Court Opinion at 6. Because adoption was an impossibility, the court reasoned that "there is no basis upon which to distinguish between [appellants'] status as previously intended adoptive parents or as foster parents" and thus concluded that appellants lacked standing.

Appellants contend that the trial court erred in equating them with foster parents for purposes of standing. Appellants note that prospective adoptive parents, unlike foster parents, are urged to form long-term emotional bonds with the children placed in their care. Appellants argue that the nature of prospective adoptive placements is sufficient to distinguish them from the foster parents in Priester, and

[ 383 Pa. Super. Page 46]

    thus they should have standing to seek judicial review of an agency's decisions regarding custody.*fn3 We agree.

As a general matter, to resolve an issue of standing, we must determine,

     whether the person seeking relief is adversely affected or "aggrieved" in any way by the matter which he seeks to challenge through the judicial process. To have standing, the adversely affected party must allege an immediate, direct and substantial injury.

In re Adoption of B.E.W.G., 355 Pa. Super. 554, 560, 513 A.2d 1061, 1064 (1986) (citation omitted). With specific regard to custody cases, we note that there appears to be a conflict in the case law in this Court concerning the standing of foster parents. In Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 324 A.2d 562 (1974), we held that foster parents do have standing to protest an agency's decision to remove a foster child from their home. Id., 228 Pa. Superior Ct. at 380-81, 324 A.2d at 567-68. In Stapleton, as here, the child had been declared dependent, and the child care agency had legal custody of him. In resolving the question of standing, we turned to the Juvenile Act, then located at 11 P.S. § 50-101 et seq. We noted that § 50-302 of the Act provided that a "proceeding" under the Act could be "commenced" by, inter alia,

     the filing of a petition as provided in this act. The petition and all other documents in the proceeding shall be entitled "In the interest of ___, a minor," and shall be captioned and docketed as provided by rule of the Supreme Court.

11 P.S. § 50-302 (repealed). 228 Pa. Super. at 378-79, 324 A.2d at 566. Based on this passage, we reasoned that the foster parents' petition, although incorrectly titled, nevertheless commenced a proceeding. Id., 228 Pa. Superior Ct.

[ 383 Pa. Super. Page 47]

    at 379, 324 A.2d at 566. The next question was whether the petition had been filed "as provided." To answer this question, we looked to § 50-314 of the Act, which stated:

A petition, which shall be verified and may be on information and belief, may be brought by any person including a law enforcement officer. It shall set forth plainly:

(1) The facts which bring the child within the jurisdiction of the court and this act, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency is alleged, that the child is in need of treatment, supervision, or rehabilitation . . . .

11 P.S. § 50-314 (repealed). Based on this section, we reasoned that "[i]t is difficult to see how standing could have been defined any more broadly. [The foster child] was within the jurisdiction of the court below. The [foster parents] are 'any persons.' They therefore had standing to file a petition raising the issue of who should have custody of [the child]." 228 Pa. Super. at 380, 324 A.2d at 567.*fn4,*fn5

[ 383 Pa. Super. Page 48]

In Priester v. Fayette County Children and Youth Services, 354 Pa. Super. 562, 512 A.2d 683 (1986), a panel of this Court considered the same question presented in Stapleton and reached a different conclusion. The child in Priester had been placed with the foster parents for a period of two years. The agency then had the child transferred to another foster home where his brother resided. The agency denied the appellants' request for the return of the child. On appeal, the panel held that the foster parents did not have standing to contest the agency's custody of the child. Id., 354 Pa. Superior Ct. at 566, 512 A.2d at 685. We should note that, in reaching this conclusion, the Priester panel did not make reference either to Stapleton or to the Juvenile Act.

The apparent conflict between Stapleton and Priester would present a difficulty to our resolution of this appeal only if we agreed with the trial court and appellee that, for purposes of standing, prospective adoptive parents are indistinguishable from foster parents. A close reading of the panel's rationale in Priester , however, convinces us that Priester is a limited exception to the otherwise broad standing provisions in the Juvenile Act, and thus should not control our analysis of the standing of prospective adoptive parents.

Priester recognized the fundamental distinction between foster placement and adoptive placement. In this regard, the panel observed that,

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

[ 383 Pa. Super. Page 49]

    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, 823, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (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 non-institutional 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.'" 431 U.S. at 824, 97 S.Ct. at 2099, citing A. Kadushin, Child Welfare Services 355 (1967). (Emphasis in original).

The singular focus of our review is one of standing for foster parents who seek to gain custody of a foster child formerly in their care. By its very nature, the foster parent/foster child relationship "'implies a warning against any deep emotional involvement with the child since under the given insecure circumstances this would be judged as excessive.'" In re Adoption of Crystal D.R., 331 Pa. Super. 501, 510, 480 A.2d 1146, 1151 (1984), quoting J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child 24 (1973).

354 Pa. Super. at 564-65, 512 A.2d at 684-85. Because foster placement, unlike adoptive placement, is temporary in nature, and because foster parents are forewarned of the temporary nature of the placement, the court concluded that foster parents do not have standing to contest an agency's custody of a child. Id., 354 Pa. Superior Ct. at 566-67, 512 A.2d at 685.

In light of the rationale detailed above, Priester is perhaps best understood as a policy exception to the 3 Juvenile Act's standing provisions, premised on the unique nature of foster placement. In other words, Priester stands for the proposition that, because foster parents have neither permanent custody of a child nor an expectation of permanent

[ 383 Pa. Super. Page 50]

    custody, the legal custodian's decision regarding who should have possession of the child does not cause the type of direct and substantial injury to foster parents that should be challenged through the judicial process.

A legal custodian's decision regarding a prospective adoptive parent's possession of a child, however, causes a very different type of injury. As Priester noted, adoptive placement implies a permanent substitution of one home for another. 354 Pa. Super. at 564, 512 A.2d at 683. Thus, prospective 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 4 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.

We find further support for our conclusion by noting that other jurisdictions have determined that prospective adoptive parents have standing to contest a child care agency's decision to remove a child from their care. In In re Thomas Joseph, 420 A.2d 85 (R.I.1980), the agency removed the child from prospective adoptive parents after a case worker became concerned with their suitability as adoptive parents. The prospective adoptive parents contested the agency's decision, and the lower court ordered the agency to return the child to them. On appeal, the agency argued that the prospective adoptive parents lacked standing to contest the removal 5 of the child from their home. In

[ 383 Pa. Super. Page 51]

    rejecting this argument, the Supreme Court of Rhode Island reasoned as follows:

We have stated many times over the past six years that the proper inquiry in resolving an issue of standing is whether the party seeking judicial review has suffered an "injury in fact," either economic or otherwise, as a result of the statute or action in dispute . . . . We have emphasized that the "injury in fact" need not be substantial . . . . As long as the person seeking judicial review has suffered an injury, he has the requisite personal stake in the outcome of the litigation to confer standing . . . .

In the present case there is no dispute that [the child] was placed with the Pelletiers [the prospective adoptive parents] as a prospective adopted child and that the [agency] subsequently removed him from their home. Although the Pelletiers may not have been entitled to the permanent custody of [the child] prior to filing an adoption petition, . . . the removal of the child from their care, which would have effectively foreclosed the possibility of adoption for them, constituted an injury in fact. Having been thus injured by the [agency's] action, 6 the Pelletiers had standing to contest the action in the Family Court.

Id. at 88-89 (citations omitted).

The Supreme Court of Utah reached a similar conclusion in In the Interest of A.H., 716 P.2d 284 (Utah 1986). In A.H., the juvenile court ordered the removal of the child from her prospective adoptive parents based upon allegations of mistreatment and neglect. The prospective adoptive parents protested the order, and the juvenile court ordered the child care agency to return the child. On appeal, the agency argued that the prospective adoptive parents had no standing to petition for restoration of custody. The Supreme Court of Utah rejected this argument, noting that:

Traditional standing criteria require that the interests of the parties be adverse and that the party "seeking relief have a legally protectible interest in the controversy." . . . Although parents are the only persons with a legally

[ 383 Pa. Super. Page 52]

For the foregoing 9 reasons, we reverse the order below and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction relinquished.

Disposition

Reversed and remanded. Jurisdiction relinquished.

POPOVICH, Judge, dissenting:

While I agree that this case should be remanded to the lower court for further proceedings, I respectfully dissent from the majority's decision that Sherry and Martin Dean have standing to petition for a return of "custody." The majority states that "a review of the petition filed by the appellants convinces us that they clearly had standing under the Juvenile Act to petition for custody of Joseph[,]" citing 42 Pa.C.S.A. § 6334. However, the majority's characterization of this case as one of "custody" is clearly erroneous. This is an adoption case and is therefore governed by the Adoption Act, 23 Pa.C.S.A. § 2101 et seq., not the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. See Matter of Adoption of Sturgeon, 300 Pa. Super. 92, 104, 445 A.2d 1314, 1320 (1982); Com. ex rel. Grimes v. Yack, 289 Pa. Super. 495, 523 n. 22, 433 A.2d 1363, 1378 n. 22 (1981). By ruling that the appellant's have standing to petition for custody, the majority simply exacerbates an otherwise simple case. When a prospective adoptive parents petitions for custody of the prospective adoptee, the petitioners, in effect, are petitioning for adoption -- not for custody. We must not allow petitioners to use the Juvenile Act to circumvent the Adoption Act.

The Adoption Act, § 2701, sets forth the requirements for a petition for adoption. § 2701(7) requires "all consents required by section 2711 (relating to consents necessary to adoption) are attached . . . ." As a pre-requisite to adoption, § 2711(a)(5) requires consent to the adoption by "the guardian of the person of an adoptee . . . ." Following the January 6, 1986, termination the parental rights of J.M.'s biological parents, Bucks County Children and Youth Social Services Agency ("C & YS") was named as the child's legal custodian. C & YS's opposition to this petition demonstrates an

[ 383 Pa. Super. Page 54]

    unequivocal refusal to consent to a future adoption of J.M. by the appellants. However, the actual legal custody of J.M. is vested in the Commonwealth with C & YS and the court simply acting as the State's agent. See Sturgeon, 445 A.2d at 1321-22. Thus, the appellant's 1 only hope for becoming adoptive parents lies in a finding by the lower court, following a full hearing, that C & YS is wrongfully withholding its consent to the adoption. See In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979), appeal dismissed, 449 U.S. 802, 101 S.Ct. 46, 66 L.Ed.2d 6 (1980) (courts have no authority to decree an adoption in absence of statutorily required consents).

Accordingly, I believe the lower court and the majority should have treated the instant petition as one for adoption -- not one for custody. Rather than finding that the appellant has standing to petition for custody, I would order the lower court to hold an evidentiary hearing and determine whether C & YS's refusal to consent to an adoption by the appellants is reasonable.*fn1

2


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