Abrogation of “Prospective Adoptive Parent” Exception to Foster Parent Participation in Dependency Cases
In the Int. of S.W., 312 A.3d 345 (Pa. Super. 2024), allocatur granted May 22, 2024, appeal docket 14 WAP 2024
The Pennsylvania Supreme Court will consider whether the judicially created “prospective adoptive parent” exception to the general rule prohibiting foster parents from participation in dependency proceedings was abrogated by Section 6336.1(a) of the Pennsylvania Juvenile Act, enacted in 1998, which provides that:
(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 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.
Slip op. at 9-10, quoting 42 Pa.C.S.A. § 6336.1(a) (emphasis added by Superior Court). Superior Court summarized the history of judicially recognized “prospective adoptive parent” exception created prior to Section 6336.1(a)’s enactment as follows:
In Mitch v. Bucks County Children and Youth Social Service Agency, 383 Pa.Super. 42, 556 A.2d 419, 423 (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 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 parents sought intervention after the rights of the biological parents were terminated.
In re Griffin, 456 Pa.Super. 440, 690 A.2d 1192, 1201 (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, 450 Pa.Super. 247, 675 A.2d 753, 757 (1996) and In re: Baby Boy S., 420 Pa.Super. 37, 615 A.2d 1355, 1357-58 (1992) aff’d per curiam, 540 Pa. 302, 657 A.2d 484 (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.
Slip op. at 7-9.
This case arises from a motion to intervene filed by former foster parents in dependency proceedings for S.W., a foster child who had been removed from their biological parent’s care, so that they could petition for the return of S.W., who the foster parents intended to adopt after Mother’s rights were terminated. As Superior Court summarized:
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) [(the child’s birth father was unknown)] and the Allegheny County Office of Children, Youth and Families (CYF). 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.
Slip op. at 1. The juvenile court denied the former foster parents’ motion to intervene and Superior Court granted interlocutory appeal to consider whether denial of the foster parents’ motion to intervene was proper.
Superior Court held that the trial court erred in denying the foster parents’ motion to intervene because the foster parents met the “prospective adoptive parent” exception to non-participation in dependency proceedings. Superior Court reasoned:
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, 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-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.
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, [383 Pa.Super. 42,] 556 A.2d 419 (1989), appeal denied, 571 A.2d 383 (Pa. 1989); In re Griffin, [456 Pa.Super. 440,] 690 A.2d 1192 (1997), appeal denied, 700 A.2d 441 (Pa. 1997), certiorari denied, 523 U.S. 1004 [118 S.Ct. 1186, 140 L.Ed.2d 317] (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.
Slip op. at 12-15. Concluding that “the essential question… is whether M.R.F. III is binding on this Court,” Superior Court opined:
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.
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, 646 Pa. 47, 183 A.3d 364, 400 n.18 (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.” 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.
Slip op. at 16-18. However, Superior Court expressed “doubt the holding in M.R.F., III could withstand a closer examination by higher authorities” for two reasons:
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, and they are entitled to be heard, but that would appear to be the extent of their rights.
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.
Slip op. at 18-19. Bound by M.R.F., III, Superior Court concluded:
…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. We also question whether the 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., 331 Pa.Super. 501, 480 A.2d 1146, 1150 (1984) (emphasis added); see also In re G.C., 558 Pa. 116, 735 A.2d 1226, 1228 (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).
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.
Slip op. at 21-23.
Concurring, Judge Lazarus found it “beyond cavil that Appellants should be permitted to intervene in the instant dependency proceedings after their foster child was removed from their care despite two years of placement.” Concurring slip op. at 1. However, “constrained by the wording of the Act itself” Judge Lazarus “urge[d] the legislature to revisit the Commonwealth’s current stance on foster parent standing and the ability to intervene in dependency proceedings under the circumstances of a child being removed from their care,” concluding that:
By giving foster parents therein a voice, we acknowledge their importance in the state’s system to ensure the permanence and best interests of children throughout this Commonwealth. Making an artificial distinction between a foster parent who has provided for a child practically since her birth to a person who has achieved formal pre-adoptive parent status is simply untenable and indefensible.
Id. at 3.
In a dissenting opinion, President Judge Emeritus Bender agreed “that the ‘prospective adoptive parent’ exception remains good law that we, as a three-judge panel, must follow,” but opined that he would find that the foster parents waived their ability to intervene under the exception:
A few weeks after the juvenile court’s decision, Appellants sought to intervene in the dependency proceedings, raising the ‘prospective adoptive parent’ exception for the first time. By this point, however, Appellants’ counsel had already affirmatively represented to the juvenile court and the parties that Appellants were not seeking to intervene. In addition, the juvenile court had already held a full removal hearing, during which Appellants were heard and never mentioned the ‘prospective adoptive parent’ exception. Finally, and significantly, Child had already been removed from Appellants’ care by this juncture.
To me, based on the foregoing, Appellants’ request to intervene came too late. Appellants had their opportunity to seek intervention under the ‘prospective adoptive parent’ exception prior to — or at — the removal hearing. For whatever reason, they failed to do so. To allow intervention under this exception now, after a full removal hearing has been held and Child has been placed with new foster parents, would add to the instability experienced by Child, and constitute a waste of both judicial and county resources. See Pa.R.J.C.P. 1606, cmt. (“Stability for the child is critical. Multiple placements can add to a child’s trauma. A child should not be shuffled from home to home out of convenience for a foster parent, relative, or other person caring for the child.”). As such, I would deem Appellants’ request to intervene under this exception to be waived.
Dissent slip op. at 6-8 (emphasis in original).
The Pennsylvania Supreme Court granted allocatur as to the following issue:
Whether the judicially created “prospective adoptive parent” exception to the general prohibition against foster parents participating in dependency cases was abrogated by the Legislature’s subsequent enactment of Section 6336.1(a) of the Juvenile Act, which provides that preadoptive foster parents shall not have standing in the matter absent an award of legal custody of the child?
For more information, contact Kevin McKeon or Dennis Whitaker.