J-A30010-17

                                   2018 PA Super 76

    IN THE INTEREST OF: M.R.F., III, A         :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.L.C. AND J.M.C.               :
                                               :
                      Appellants               :
                                               :
                                               :   No. 904 WDA 2017

                      Appeal from the Order May 26, 2017
    In the Court of Common Pleas of Lawrence County Civil Division at No(s):
                                No. 33 of 2014


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.:                                   FILED MARCH 28, 2018

        Foster parents, K.L.C. and J.M.C. (collectively Appellants), appeal the

juvenile court order denying their motion to intervene in the ongoing

dependency proceedings involving now four-year-old M.R.F., III (“M.R.F.”).1

We affirm.

        The juvenile court succinctly summarized the underlying facts and

procedural history as follows:
____________________________________________


1 Appellants also filed a complaint for custody against the birth mother and
Lawrence County Children and Youth Services (“LCCYS”) at civil action
10488 of 2017. Considering the fact that LCCYS has maintained sole legal
and physical custody of M.R.F. since he was adjudicated dependent, and that
Appellants serve as foster parents at the agency’s pleasure and oversight, it
is unclear how they have standing to pursue custody under 23 Pa.C.S. §
5324. See In re J.S., 980 A.2d 117, 122 n.3 (Pa.Super. 2009) (“Foster
Parents did not stand in loco parentis because their status as foster parents
was subordinate to CYF, who maintained legal custody and was primarily
responsible for the child's care and custody.”). Nevertheless, since there are
no issues relating to physical or legal custody in this appeal, we do not
address that litigation herein.
J-A30010-17



             M.R.F. . . . came into the legal and physical custody of
      Lawrence County Children and Youth Services ("LCCYS")
      following a domestic violence incident involving his biological
      parents[, T.S. (“Mother”) and M.F., Jr. (“Father”)]. Charges
      were filed against both the Mother and Father as a result of the
      incident and both were briefly jailed. A dependency action was
      filed because both parents were in jail and unavailable to care
      for the child. Mother was released within days and all charges
      against her were dismissed. M.R.F. . . . was adjudicated
      dependent with a permanency goal of reunification. LCCYS
      placed M.R.F. . . . with [Appellants] in a foster home setting
      [during May 2014,] when he was approximately three (3)
      months old and [he] has remained in that foster placement since
      that time. On or around February 3, 2016, LCCYS filed a Motion
      for Goal Change and a Petition for Involuntary Termination of
      Parental Rights of [Mother] and [Father]. Subsequent to the
      filing of the Petition for Involuntary Termination by LCCYS, the
      Father executed a Consent to Adoption on March 9, 2016 and by
      Order of Court dated May 13, 2016 his Consent was confirmed
      and his parental rights were terminated. The Petition for
      Involuntary Termination of Parental Rights of the Mother was
      denied by Order of . . . Court dated July 6, 2016. The Motion for
      Goal Change was also denied, and the permanency goal for
      M.R.F. . . . has never been changed from reunification with
      Mother[.]

Trial Court Order and Opinion, 5/25/17, 1-2.

      Essentially, the juvenile court found that Mother made substantial

compliance with the permanency plan insofar as she attended visitations

with M.R.F. regularly and progressed through the allotted reunification

services.   In addition, the court determined that Mother made significant

progress toward alleviating the circumstances which necessitated M.R.F.’s

original placement. Specifically, Mother cooperated with criminal authorities,

terminated her involvement with Father, and demonstrated her dedication to

M.R.F. by maintaining a stable living environment.

                                    -2-
J-A30010-17


      On May 2, 2017, the juvenile court confirmed that reunification with

Mother was the appropriate permanency goal.             Adoption remained the

concurrent goal. In an effort to facilitate M.R.F.’s reunification with Mother,

the juvenile court awarded Mother one overnight visitation and one four-

hour community visit with her son per week.        LCCYS retained legal and

physical custody of the child, and the juvenile court concluded that his

current placement in foster care was appropriate. The agency did not appeal

the orphans’ court’s order denying the petition to terminate Mother’s

parental rights or the juvenile court’s ensuing permanency order that

extended the scope of Mother’s visitations with her son.

      On   June   6,   2017,   Appellants   countered    the   juvenile   court’s

permanency review order by filing the motion to intervene that is the

genesis of the instant appeal.   In pertinent part, Appellants asserted that

LCCYS deemed them to be a preadoptive placement resource and, during

April 2016, the Statewide Adoption and Permanency Network (“SWAN”)

approved them as adoptive parents.          The petition continued that the

designation of prospective adoptive parents made them indispensable

parties in the dependency proceedings and satisfied the requirements of

standing under the Juvenile Act. Appellants requested standing to intervene

in the dependency proceedings, including notice of hearings, copies of orders

and reports, and the ability to formally express their opinions and

preferences concerning how to best achieve M.R.F.’s safety, permanency and


                                     -3-
J-A30010-17


wellbeing. Most importantly, notwithstanding the orphans’ court’s refusal to

terminate Mother’s parental rights and the juvenile court’s subsequent

affirmation of reunification as the permanency goal, Appellants entreated the

trial court to proceed with their adoption of M.R.F.

       The juvenile court held an evidentiary hearing on May 23, 2017.

Appellants testified in support of their petition and presented the testimony

of Kayla Gould, the LCCYS caseworker assigned to the family since 2016.

Significantly, Ms. Gould testified that the agency considered Appellants to be

a preadoptive placement resource and confirmed that they completed SWAN

training in anticipation of adoption following the termination of Mother’s

parental rights.     N.T., 5/23/17, at 42-43.    On May 25, 2017, the juvenile

court entered a memorandum order and opinion that denied Appellants’

petition to intervene and explained the basis for its decision.    This timely

appeal followed.

       Appellants assert four issues for our review:

       A.    Whether the [t]rial [c]ourt erred and abused its discretion
       by concluding [Appellants’] status as foster parents has never
       changed and that [Appellants] failed to present evidence which
       supported their claim that they are pre-adoptive/prospective
       adoptive[2] parents of the above-named minor child.
____________________________________________


2 Appellants, Mother, and the juvenile court employ the terms “preadoptive
parent” and “prospective adoptive parent” interchangeably. Neither the
Juvenile Act nor the Adoption Act defines either expression, and no
precedential authority has distinguished the phrases. Thus, for the purposes
of this appeal, the two references describe the identical situation where a
would-be parent has a legitimate, genuine, and reasonable expectation of
(Footnote Continued Next Page)


                                           -4-
J-A30010-17



      B.    Whether the [t]rial [c]ourt erred and abused its discretion
      by failing to permit the introduction of testimony necessary for
      the [c]ourt to give full and adequate consideration to the best
      interests, health and safety of the child, which is the focus of
      every case involving the care of children.

      C.    Whether the [t]rial [c]ourt erred and abused its discretion
      by failing to permit the introduction of testimony necessary for
      the [c]ourt to give full and adequate consideration of the
      substantial, direct and immediate nature of [Appellants’] interest
      in the above-named child and dependency matter.

      D.    Whether the [t]rial [c]ourt abused its discretion and erred
      as a matter of law by concluding that [Appellants] do not fit
      within any classes of individuals who have standing to intervene
      in the dependency action and are not entitled to intervene in the
      above-captioned dependency matter pursuant to Pa.R.J.C.P.
      1133.

Appellants’ brief at 3-4.3 While Appellants frame four issues, the argument

section of their brief combines Issue A, B, and C for discussion. For ease of

disposition, we separately address the two arguments concerning the

juvenile court’s decision to exclude certain evidence, Issues B and C, from

the remaining arguments regarding standing.

      The juvenile court order denying Appellants’ motion to intervene raises

a question of law that we review de novo. In re J.S., 980 A.2d 117, 120


(Footnote Continued) _______________________

adoption, even though the authority to finalize the adoption is contingent
upon the child care agency’s ultimate approval. See In re Griffin, 690 A.2d
1192 (Pa.Super. 1997).

3  Mother filed a brief in opposition. Neither LCCYS nor the guardian ad litem
filed a brief.



                                          -5-
J-A30010-17


(Pa.Super. 2009). Upon review of the certified record, we affirm the order

denying the motion to intervene.

      The Pennsylvania Rules of Juvenile Court Procedure govern motions to

intervene in ongoing dependency proceedings. Specifically, Pa.R.J.C.P. 1133

provides,

      Motion to Intervene

      A. Contents. The motion to intervene shall include:

      (1) the name and address of the person moving to intervene;

      (2) the relationship of the intervening person to the child;

      (3) the contact between the child and the intervening person;

      (4) the grounds on which intervention is sought; and

      (5) the request sought.

      B. Action by court. Upon the filing of a motion to intervene and
      after a hearing, the court shall enter an order granting or
      denying the motion.

Pa.R.J.C.P. 1133. As explained in the comments to the rule, the standard of

proof required for intervention mirrors that of demonstrating standing in civil

cases, i.e., “To move for intervention in a dependency case, a person is to

show that the interest is substantial, direct, and immediate.”       Rule 1133

cmt. Thus, to the extent that standing and intervention are distinct concepts

under the rules of civil procedure, the terms are used interchangeably in

dependency jurisprudence.       More accurately stated, intervention is the

means that a nonparty achieves standing in a dependency proceeding. E.g.,


                                     -6-
J-A30010-17


In re G.D., 61 A.3d 1031, 1042 (“Upon considering Aunt’s [Rule 1133]

motion and the evidence from both of the hearings, the trial court found

insufficient grounds for granting Aunt's motion to intervene, i.e., Aunt failed

to establish that she had either statutory standing or stood in loco parentis

as to Child.”).

      Section 6336.1(a) and (b) of the Juvenile Act, relating to notice and

hearing, provides foster parents and preadoptive parents notice of hearings

and the right to be heard regarding the dependent child’s “adjustment,

progress and condition.” 42 Pa.C.S. § 6336.1. Generally, foster parents do

not have standing to participate in dependency proceedings. Id. (“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.”).

      Indeed, the statutory scheme outlining foster-parent rights in the

context of dependency proceedings and the case law confronting this issue

limit standing in dependency proceedings to a narrow class of participants.

“Only a ‘party’ has the right to participate, to be heard on his or her own

behalf, to introduce evidence, and/or to cross-examine witnesses.”       In re

L.C., II, 900 A.2d 378, 380–81 (Pa.Super. 2006). We have defined party to

include “(1) the parents of the juvenile whose dependency status is at issue;

(2) the legal custodian of the juvenile whose dependency status is at issue,




                                     -7-
J-A30010-17


or (3) the person whose care and control of the juvenile is in question.” In

re J.S., supra. We explained the underlying rationale as follows:

     These categories logically stem from the fact that upon an
     adjudication of dependency, the court has the authority to
     remove a child from the custody of his or her parents or legal
     custodian. Due process requires that the child's legal caregiver,
     be it a parent or other custodian, be granted party status in
     order to be able to participate and present argument in the
     dependency proceedings.

Id. (cleaned up).

     Appellants are not a party to the dependency proceeding.       They are

neither the parents nor legal custodians of M.R.F, and they are not the

people whose care and control is in question.      Thus, they do not have

standing to participate in the dependency proceedings as a party possessing

the rights to counsel, to argue their own interests, to introduce evidence,

and/or to cross-examine witnesses pursuant to 42 Pa.C.S. §§ 6336.1(a),

6337, and 6338.     See In re J.F., 27 A.2d 1017 (Pa.Super. 2011) (since

foster parent lacked standing, she did not have rights of a party, i.e., the

right to counsel, call witnesses, and conduct cross-examination).

     Nevertheless, our case law has carved a narrow exception to permit

the limited participation of a foster resource who has attained 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.   See In re Griffin, 690 A.2d 1192 (Pa.Super.

1997); Mitch v. Bucks County Children and Youth Social Service


                                    -8-
J-A30010-17


Agency, 556 A.2d 419, 423 (Pa.Super. 1989) (prospective adoptive parents

have standing in juvenile court to contest agency’s decision to remove foster

child from their physical custody).

      In re Griffin addressed whether dissatisfied foster parents had

standing to appeal a juvenile court's decision to remove a dependent child

from their care. In upholding the foster parents’ standing to appeal from the

juvenile court order, this Court reasoned that, as the designated prospective

adoptive parents, they had an expectation of permanent custody that grants

them standing in dependency matters involving the foster child. We offered

the following rationale:

      [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.

In re Griffin, supra at 1201 (quoting Mitch, supra at 419) (emphases

added). With these principles in mind, we address the merits of Appellants’

complaints.




                                      -9-
J-A30010-17


      At the outset, we address the evidentiary claims that Appellants assert

in Issue B and Issue C, and for the following reasons, we reject those claims

of error.     We review a trial court's evidentiary rulings for an abuse of

discretion.    Lykes v. Yates, 77 A.3d 27 (Pa.Super. 2013).                   Instantly,

Appellant complains that the juvenile court erred in failing to admit evidence

regarding M.R.F.’s interactions with the foster family and the bonds that he

formed during the three years that he was in placement.                  In addition,

Appellants argue that the juvenile court barred evidence of their subjective

expectation of adopting M.R.F.

      In rejecting these positions, the trial court concluded that the

proposed testimony was irrelevant to the prevailing question concerning

whether     Appellants   had    standing   to   participate   in   the   dependency

proceedings pursuant to 42 Pa.C.S. § 6336.1 and the prevailing case law.

We agree.

      The dispositive questions in this case are whether Appellants fit into

one of the three categories of a party, or fall within the designation of

preadoptive/prospective    adoptive    parents     who   challenge       an   agency’s

decision to remove a preadoptive child from their home.             Those are legal

questions that are independent of best-interest considerations and the foster

families’ subjective beliefs.     Hence, we agree that Appellants’ proposed

evidence regarding the bonds that M.R.F. formed with his foster family

during his three-year placement and their subjective expectations of


                                      - 10 -
J-A30010-17


adoption are irrelevant.    Again, the only relevant evidence in this case

related to Appellants’ potential status as either a party or a prospective

adoptive parent—two objective determinations. Therefore, no relief is due.

      Next, we address whether the trial court erred in concluding that

Appellants lacked standing to participate in the dependency proceedings.

This subsumes the arguments Appellants raised in the statement of

questions presented under Issues A and D.

      In rejecting Appellants’ petition to intervene, the juvenile court

reasoned, in part, that Appellants did not establish that they had attained

the status of prospective adoptive foster parents. Specifically, the trial court

found that Appellants “failed to present any evidence which supported their

claim that they were pre-adoptive/prospective adoptive parents.” Trial Court

Order and Opinion, 5/25/17, at 2. The juvenile court further explained,

      because the record is devoid of any official action altering
      [Appellants’] status from foster parents to pre-adoptive adoptive
      parents, the Court finds that [Appellants’] status has never
      changed from that of foster parents. [Appellants’] belief that
      they are pre-adoptive/prospective adoptive parents to M.R.F.
      . . . does not confer such a status upon them.

Id.

      Appellants counter that they are, in fact, the prospective adoptive

parents of four-year-old M.R.F., whom they have taken care of since he was

three months old. They highlight that LCCYS not only specifically requested

that they become an adoptive resource, but also paid for them to obtain

adoption certification through SWAN.

                                     - 11 -
J-A30010-17


      While we agree with the trial court’s determinations that it never

formally recognized a change of status and that Appellants’ subjective beliefs

were immaterial, for the reasons discussed, infra, the certified record belies

the juvenile court’s conclusion that Appellants never attained preadoptive

status. The record sustains an objective determination that Appellants have

a legitimate expectation of adopting M.R.F., even though that outcome

remains contingent upon the termination of Mother’s parental rights and

LCCYS’s approval.

      During the evidentiary hearing on Appellants’ petition to intervene in

the dependency proceedings, Ms. Gould, the LCCYS caseworker assigned to

the family, testified that the agency considered Appellants to be a

preadoptive resource, and she verified that the couple completed the

adoption program administered by SWAN. N.T., 5/23/17, at 42, 43.          She

explained, “When we file for termination of parental rights, . . . we like to

have a pre-adoptive home identified if we are deciding to move forward.”

Id. at 43. She continued, “if a child has been in a home for an extended

length of time, we . . . ask that family whenever we decide to move towards

termination of parental rights if they wish to be a pre-adoptive [resource].”

Id.   Most importantly, Ms. Gould verified that even though the current

permanency goal is reunification with Mother, if the juvenile court sought to

pursue the concurrent goal of adoption, the agency still would look to

Appellants as the preadoptive resource. Id. at 47.


                                    - 12 -
J-A30010-17


      Likewise, the testimony of K.L.C. and J.M.C. confirmed that during

April 2016, LCCYS directed them to obtain adoption certification in

anticipation of terminating Mother’s parental rights. Id. at 12, 34-35. By

completing the required program, which the agency paid for, Appellants

became eligible to perfect the adoption. Id. at 13, 15. The couple intended

to adopt M.R.F. before the eligibility expired during April 2019. Id. at 15,

36-37.   J.M.C. summarized LCCYS’s positon on the previously anticipated

adoption as follows: “They sent us for classes to become adoptive parents

so when the [termination] hearing was [over] . . ., we were to be the

adoptive parents. Id. at 39. K.L.C. testified that she believed that LCCYS

still supported their intent to adopt M.R.F. Id. at 21, 28.

      While the guardian ad litem did not present any evidence or witnesses

during the hearing, it supported Appellants’ petition to intervene and opined

that the agency’s regard of Appellants as a preadoptive resource never

changed.   Mindful of that position, and in light of the foregoing testimony

demonstrating LCCYS’s perspective of Appellants as a preadoptive resource

upon the termination of Mother’s parental rights, we conclude that the trial

court erred in concluding that Appellants did not demonstrate that they were

preadoptive foster parents as envisioned in In re Griffin.

      Finally, to the extent that the juvenile court reasoned that Appellants

were precluded from having any expectation of adoption because it denied

LCCYS’s petition to terminate Mother’s parental rights and declared that the


                                    - 13 -
J-A30010-17


child’s permanency goal remained reunification, the court’s reasoning is

flawed. While M.R.F. is not eligible for immediate adoption, that option has

not been foreclosed.          Although the trial court denied the petition to

terminate Mother’s parental rights, and gave her an opportunity to prove her

commitment to reunification, that does not negate Appellants’ preadoptive

status. Indeed, adoption remains the concurrent goal, and M.R.F. continues

to be placed with Appellants while Mother attempts to demonstrate her

resolve.4    Although adoption is no longer imminent, it continues to be a

plausible outcome of this case, particularly in light of the fact that M.R.F. has

remained in dependency placement for three years—approximately one-year

more than the eighteen to twenty-four months typically allotted to finding

permanency closure for dependent children.          Hence, notwithstanding the

increase in Mother’s visitation schedule, Appellants continue to have the

expectation of adoption.         Thus, the trial court’s reliance on the current

posture of the dependency proceedings to bolster its conclusion that

Appellants are not a preadoptive resource is ineffectual.

       Notwithstanding Appellants’ designation as preadoptive foster parents,

we affirm the juvenile court order denying intervention because the purpose

____________________________________________


4 Mindful that M.R.F. has remained in foster care for what is approaching
four years, we believe it imperative that the juvenile court develop some
sense of urgency in finding permanency for the child, whether it is through
reunification with Mother, adoption, or another alternative available to the
juvenile court pursuant to § 6351(f.1) (3) and (4) of the Juvenile Act.



                                          - 14 -
J-A30010-17


of Appellants’ intervention, i.e., to protest Mother’s increased visitation and

to request the initiation of further proceedings under the adoption act,

exceeds the limited scope of participation that In re Griffin permits.

Phrased differently, as preadoptive foster parents, Appellants would have

standing to pursue the narrow basis recognized in In re Griffin, supra, but

for the reasons we discuss infra, standing is not found here and hence,

intervention was properly denied.

      Instantly, Appellants are not seeking to intervene in the dependency

proceedings in order to protect their interest from LCCYS’s decision to

remove M.R.F., and they are not at risk of suffering a substantial injury due

to the child’s removal. Likewise, this is not a scenario where LCCYS decided

to foreclose the possibility of Appellants’ adoption of M.R.F.    Indeed, Ms.

Gould testified that the agency is pleased with Appellants’ care of M.R.F.,

does not intend to move him to a different foster family, and still considers

Appellants to be the primary adoptive resource if Mother’s parental rights

are eventually terminated.     N.T., 5/23/17, at 46-47.      Since Appellants’

desire to intervene in the dependency proceedings relates to the substance

of the juvenile court’s decisions to provide Mother increased visitation,

rather than the agency’s decision to remove the child from their care,

Appellants’ entreaty does not implicate the significant interests that we have

permitted the preadoptive foster parents to protect in In re Griffin, supra,

and its progeny. Accordingly, it does not fit within the narrow exception to


                                    - 15 -
J-A30010-17


the general rule that limits standing in dependency matters to the three

classes of parties listed in In re L.C., II, supra. Hence, the juvenile court

did not err in denying the petition for intervention.

      As our holding in In re Griffin, supra, does not apply to Appellants’

reasons for seeking to intercede in the instant dependency proceeding, we

affirm the juvenile court order denying their petition to intervene.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2018




                                     - 16 -
