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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)

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 ...


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