In re S.W.

312 A.3d 345

In the INTEREST OF: S.W., a Minor

Appeal of: A.E. and A.E. Appellants

No. 22 WDA 2023

Superior Court of Pennsylvania.

Submitted August 15, 2023

Filed March 13, 2024

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, Eleanor L. Bush, J.

Alexandra E. Cabonor, Wexford, for appellants.

Marcus Spisso, Guardian ad litem, Pittsburgh, for appellee.

Darnel B. Long, Assistant County Solicitor, Pittsburgh, for Allegheny County Office of Children, Youth, and Families, participant.

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.:

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.

[1, 2] Foster parents are generally prohibited from participating in dependency proceedings, but there exists a judicially created exception to this rule – namely, the "prospective adoptive parent exception." See In the Interest of 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 bom 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’ 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.SA. § 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.SA. § 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 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 refiled 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 complained of on appeal. See Pa.RA.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).

[3, 4] 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 a comprehensive review of the record for assurance the findings and credibility determinations are competently supported." Interest of K.N.L., — Pa. —, 284 A.3d 121, 132-33 (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.

[5] 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.

[6] 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:

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 [97 S.Ct. 2094, 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 noninstitutional substitute care,’ " and second, " ‘that it is

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