J-A18005-14

                             2015 PA Super 39

IN THE INTEREST OF: C.R., a Minor             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: M.J.R.                                  No. 188 MDA 2014


                Appeal from the Order entered January 2, 2014,
          in the Court of Common Pleas of Dauphin County, Criminal
                  Division, at No(s): CP-22-DP-0000146-2010

IN THE INTEREST OF: D.R., a Minor             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: M.J.R.                                  No. 189 MDA 2014


                Appeal from the Order entered January 2, 2014,
          in the Court of Common Pleas of Dauphin County, Criminal
                  Division, at No(s): CP-22-DP-0000144-2010

BEFORE:     LAZARUS, WECHT and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:                      FILED FEBRUARY 19, 2015

     M.J.R. (“Foster Mother”), the former foster mother of the two subject

minor, female children, C.R. (born in September 2006), and D.R. (born in

February 2008) (collectively, “the Children”), appeals from the Orders

entered on January 2, 2014, dismissing her Motions for a permanency

review hearing to determine placement under section 6351 of the Juvenile
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Act,1 with regard to the Children, who were adjudicated dependent under

section 6302 of the Juvenile Act.2 The Dauphin County Social Services for

Children & Youth (“DCSS for C & Y” or the “Agency”) has filed a Motion to

Quash the appeal, claiming that Foster Mother lacks standing.       We agree,

and quash the appeals for lack of standing.

        We note the following relevant facts.      On October 1, 2010, the

Children were placed in the home of Foster Mother and M.R., her husband,

as foster parents. The Children were adjudicated dependent on October 14,

2010, and their biological mother voluntarily relinquished her parental rights

on April 5, 2012.

        In July 2012, several indecent assault charges were brought against

the Children’s foster father, M.R.    The trial court terminated the parental

rights of the Children’s biological parents on August 30, 2012. Thereafter, in

November 2012, a safety plan with provisions for the Children was put into

effect by Orders entered on November 2, 2012, signed by Dauphin County

President Judge Todd A. Hoover.      The November 2, 2012 Orders, denying

the Agency’s Motion for placement, each provided as follows:

        ORDER – Based upon the above findings, IT IS ORDERED
        THAT:

           Physical custody of the subject minor child shall remain at
           the foster home of [Foster Mother].

1
    42 Pa.C.S.A. § 6351 et seq.
2
    42 Pa.C.S.A. § 6302.


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         Placement of the subject minor child shall not be modified
         and shall remain at the current foster home. The child’s
         placement is the least restrictive placement that meets
         the needs of the child and there is no less restrictive
         alternative available.

     IT IS FURTHER ORDERED THAT:

         . . . the safety plan in place concerning the subject minor
         child must be adhered to. IF the safety plan is violated,
         the child shall be immediately removed from the foster
         home.

           Such disposition having been determined to be best
         suited to the protection and physical, mental and moral
         welfare of the child.

Orders (Modification of Child’s Placement), 11/2/12.

     Thus, under the November 2, 2012 Orders and the safety plan, the

Children remained in Foster Mother’s home, with supervisory measures

implemented for M.R. Under the safety plan, (1) M.R. was not permitted to

sleep in the home; (2) M.R. was not to have any unsupervised contact with

the Children; and (3) M.R. was not to have any contact with the Children, in

the home or otherwise, without a third person being present.

     On June 13, 2013, M.R. entered a guilty plea. On June 20, 2013, the

guardian ad litem for the Children, Joy Fleming, Esquire (“Attorney

Fleming”), filed a Motion for Modification of the Children’s placement,

requesting their immediate removal from the home for their safety. On June

20, 2013, the Agency removed the Children, and placed them in the foster

home of C.H. and B.H. On June 21, 2013, the Agency filed a Response to


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the Motion for Modification of the Children’s placement. On June 24, 2013,

the trial court entered an Order directing the parties to appear for a

conference on July 8, 2013.    Foster Mother was not served with notice of

either the Motion for Modification or the Response of the Agency, nor was

she served with notice of the trial court’s Order. Although the Children were

removed from her home, Foster Mother did not seek to be heard on the

removal, or to intervene in further dependency proceedings.

     On September 24, 2013, M.R. was sentenced to serve two consecutive

terms of twenty-four months of probation, and was placed on the Megan’s

Law Offender list for the next fifteen years.   On September 24, 2013 and

December 3, 2013, a Juvenile Court Master held permanency review

hearings, and determined that the Children should continue in placement

with their then current foster parents. By Orders entered on September 25,

2013, and December 4, 2013, The Honorable John F. Cherry adopted the

Master’s recommendations.

     On December 18, 2013, Foster Mother filed Motions for permanency

review hearings to determine the Children’s placement.        In her Motions,

Foster Mother asserted that she does not pose a safety threat to the

Children, and that they were improperly removed from her home on June

20, 2013, without notice or an opportunity for her to be heard on the

necessity of removal.   As such, Foster Mother claimed that the removal

violated section 6336.1(a) of the Juvenile Act, 42 Pa.C.S.A. § 6336.1(a),


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which requires that a foster parent be timely provided notice of hearings and

an opportunity to be heard.     Foster Mother also claimed that the removal

violated Rules 1604 and 1606 of the Pennsylvania Rules of Judicial Court

Procedure (“Pa.R.J.C.P.”), regarding submission of a report concerning the

foster child by a foster parent, and the modification of a dependent child’s

placement, respectively. According to Foster Mother, the actions subsequent

to the removal of the Children from her home were presented to a Juvenile

Master, as opposed to the trial court judge, Judge Hoover. She argued that

the presentation to a Juvenile Master was in violation of an implicit direction

in the trial court’s November 2, 2012 Order, which provided that any

removal action without a violation of the safety plan was to occur only

before Judge Hoover, and not before a Master. See Motion, 12/18/13, at ¶¶

38-39.

      On January 2, 2014, the trial court, by Judge Cherry, entered an Order

dismissing Foster Mother’s Motion, ruling that she lacked standing to request

a permanency review hearing on the Children’s placement.

      On January 29, 2014, Foster Mother filed two Notices of Appeal, along

with Concise Statements of Errors Complained of on Appeal, pursuant to

Pa.R.A.P. 1925(a)(2)(i) and (b).    This Court, sua sponte, consolidated the

appeals on February 27, 2014.

      Foster Mother now presents the following claim for our review:

      Did the Dependency Court err when it dismissed [Foster
      Mother’s] Motion for Permanency Review Hearing to Determine

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      Placement on grounds that [Foster Mother] lacked legal standing
      to make such request?

Foster Mother’s Brief at 4.

      Our Supreme Court has set forth our standard of review in dependency

cases as follows:

            [T]he standard of review in dependency cases requires an
      appellate court to accept the findings of fact and credibility
      determinations of the trial court if they are supported by the
      record, but does not require the appellate court to accept the
      lower court’s inferences or conclusions of law. Accordingly, we
      review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). An issue regarding standing to

participate in dependency proceedings is a question of law warranting

plenary review, and our scope of review is de novo. See In re S.H.J., 78

A.3d 1158, 1160 (Pa. Super. 2013); In re J.S., 980 A.2d 117, 120 (Pa.

Super. 2009). “[T]he question of standing is whether a litigant is entitled to

have the court decide the merits of the dispute or of particular issues.”

Silfies v. Webster, 713 A.2d 639, 642 (Pa. Super. 1998).

      In determining that Foster Mother lacked standing to participate in the

dependency proceedings, the trial court reasoned as follows:

            … C.R. and D.R. have been in the legal and physical
      custody of the Agency since October 14, 2010. Though the
      [C]hildren were placed in the pre-adoptive home of [M.R.] and
      [Foster Mother] on October 1, 2010, the [C]hildren were
      removed from that home on June 20, 2013 due to safety
      concerns. C.R. and D.R. were placed and continue to be placed
      in the pre-adoptive home of [C.H. and B.H.]. Similar to In re
      S.H.J., it is not relevant that [Foster Mother] had previously
      been a foster parent to the [C]hildren when considering the
      issue of standing. [Foster Mother] is no longer a foster parent to

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      the [C]hildren. As it stands, [Foster Mother] is not an individual
      with standing as enumerated in the relevant statutory and case
      law. Additionally, [Foster Mother] does not have legal custody of
      the [C]hildren. For these reasons, [Foster Mother] does not
      possess standing in the matter.

Trial Court Opinion, 2/14/14, at 4.

      Foster Mother contends that she had standing to file the Motions for

permanency review hearings, relying on In re C.M.S., 884 A.2d 1284 (Pa.

Super. 2005), for the proposition that a prospective adoptive parent, who is

in loco parentis, has standing to petition the court for custody or termination

of parental rights, even when she does not have legal custody.        Brief for

Appellant at 8. Foster Mother acknowledges that the Agency retained legal

custody of the Children. Id. at 9. She argues that, until the Children were

removed from her home and placed in another home, she had standing to

petition the court for legal custody by filing a petition for adoption pursuant

to C.M.S. and Silfies.     Id.   Foster Mother urges that the removal of the

Children from her home was improper because there was no emergency,

and she was not afforded notice of the removal. Id. Foster Mother states

that, while safety concerns were the reason for modifying the placement, the

Children   had   been in    Foster    Mother’s care, without   incident.   Id.

Additionally, Foster Mother argues that, to permit the requirements of

section 6336.1(a), regarding the participation of foster and pre-adoptive

parents in dependency proceedings, to be wholly disregarded without

recourse for her, would render the statute a nullity. Id. at 10.


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        Moreover, Foster Mother argues that Pa.R.J.C.P. 1606 required the

trial court to hold a hearing on the modification of the Children’s placement,

which, she argues, was not an emergency because the Children had been in

her care, under the safety plan, while M.R. was charged with his crimes. Id.

at 9.    Foster Mother asserts that she was deprived of her constitutional

guarantee to due process of law because she was not provided with notice of

the presentation of the modification Motion, so that she could object and be

given an opportunity to be heard at a hearing. Id. at 10.

        Section 6336.1 of the Juvenile Act addresses notice and hearings in

juvenile matters and provides, in relevant part, as follows:

        § 6336.1. Notice and hearing

           (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.

42 Pa.C.S.A. § 6336.1 (emphasis added).

        Rule 1606 addresses the modification of dependent child placement

and provides, in relevant part, as follows:

        Rule 1606. Modification of Dependent Child’s Placement

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     A. County agency’s duties.

        (1) Emergencies.

           (a) Only in an emergency when a judge cannot be
           reached, a child may be placed temporarily in a
           shelter care facility or other appropriate care.

           (b) The county agency immediately shall notify the
           court and all parties of any change made due to the
           emergency.

           (c) The county agency shall file a motion or
           stipulation for modification of the dispositional order
           by the next business day of the child’s placement in
           a shelter care facility or other appropriate care.

        (2) Non-emergent cases. In all other cases, the county
        agency shall seek approval of the court for a change in
        the child’s placement prior to the removal of the child
        from the placement by filing a motion or a stipulation of
        modification of the dispositional order.

     B. Contents of the motion. The motion for modification of
     the dispositional order shall include:

           (1) the specific reasons for the necessity of change
           to the order;

           (2)   the proposed placement;

           (3)   the current location of the child;

           (4) the manner in which any educational, health
           care, and disability needs of the child will be
           addressed;

           (5) an averment as to whether each party concurs
           or objects to the proposal, including the child’s
           wishes if ascertainable; and

           (6)   the signatures of all the parties.

     C.    Objections. If a party objects to proposed modification of
     the dispositional order, the objections shall be filed no later than


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     three days after the filing of the motion for modification of the
     child’s placement.

     D.    Court’s duties. Once the county agency has requested
     approval from the court to modify a child’s placement or after an
     emergency change in placement has already taken place, the
     court may:

           (1) schedule a prompt hearing to determine
           whether there will be a modification of the child’s
           placement;

           (2) enter an appropriate order to modify the child’s
           placement; or

           (3)      enter an order denying the motion.

     Comment: This rule is intended to address changes in the
     child’s placement. Brief temporary removals for hospitalization,
     respite situations, visitations, or other matters when a child will
     be returned to the same placement are not covered under this
     rule.

             Pursuant to paragraph (A)(1), if there must be a change in
     the placement of the child due to an emergent situation, the
     county agency may temporarily place a child in a shelter-care
     facility or other appropriate care pending the filing of a motion
     for modification of the dispositional order. The county agency
     immediately is to notify the court and all parties of the change
     made and file a motion or stipulation by the next business day.

           Pursuant to paragraph (A)(2), in all other cases, the court
     is to make a decision prior to the child being removed from the
     placement. 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.

Pa.R.J.C.P. 1606.

     First, we address whether Foster Mother has standing to participate in

the present dependency proceedings, through the filing of her Motions for

permanency review hearings regarding the placement of the Children, in

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order to have them returned to her. Essentially, Foster Mother’s Motion is a

motion to intervene in the dependency proceedings.

      This Court has explained that

      [p]arty status in dependency proceedings is limited to only three
      classes of persons: “(1) the parents of the juvenile whose
      dependency is at issue; (2) the legal custodian of the juvenile
      whose dependency is at issue; or (3) the person whose care and
      control of the juvenile is in question.” In the Interest of L.C.,
      II, 900 A.2d 378, 381 (Pa. Super. 2006).

In re S.H.J., 78 A.3d at 1160-61.

      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.

Id. at 1161 (citation, quotation marks, emphasis and some punctuation

omitted). This Court has consistently held that foster parents and persons

acting in loco parentis do not have standing to intervene in dependency

cases. Id. at 1161 (citing, inter alia, In re J.S., 980 A.2d 117, 122-23 (Pa.

Super. 2009)).3



3
  In In re J.S., a panel of this Court addressed an appeal, by the agency
and the mother of the subject child, from the trial court’s grant of permission
for the child’s foster parents to intervene in an ongoing dependency
proceeding. The panel reversed, citing section 6336.1. The panel reasoned
that the foster parents lacked legal custody and lacked standing both to
participate in the proceedings and to review the juvenile court record. Id.
at 122-23. Moreover, the panel noted that the foster parents could not
stand in loco parentis to the child because their status as foster parents was
subordinate to the agency, which maintained legal custody and was primarily
responsible for the child’s care and custody. Id. at 122 n.4.


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      In In re C.M.S., cited by Foster Mother, this Court concluded that

prospective adoptive parents have standing in loco parentis with regard to a

child, and may commence a legal proceeding involving the child, either for

custody or termination of parental rights. In re C.M.S., 884 A.2d at 1288-

89 (citing, inter alia, Silfies, 713 A.2d at 643-45).4 Because the petitioners

in In re C.M.S. stood in loco parentis to the child, this Court concluded that

they had standing to file a termination petition.

      We conclude that In re C.M.S. and Silfies are inapplicable in the

instant case, as the present case is not a termination or custody matter, but

a dependency case. As stated above, this Court has held that foster parents

and persons acting in loco parentis do not have standing to intervene in

dependency cases. In re S.H.J., 78 A.3d at 1161-62. Further, the panel in

In re S.H.J. expressly declined to apply case law addressing standing in

custody, termination, and adoption matters, to cases involving dependency

proceedings.

      We, therefore, need not address Foster Mother’s argument that she

was deprived of her in loco parentis status, and her ability to petition for

adoption or legal custody of the Children, based upon the failure of the

guardian ad litem to adhere to the process set forth in Rule 1606. Foster


4
  Silfies involved an appeal from the dismissal of two successive child
custody complaints filed by prospective adoptive parents who had assumed
considerable parental duties with regard to the child at issue. The panel
found that the prospective adoptive parents stood in loco parentis to the
child, and had standing to bring the custody action.
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Mother has not established standing under any of the three categories

articulated in L.C., II. To the extent that Foster Mother contends that the

removal process was improper in this matter, she does not have standing,

as a party to the dependency proceedings, to bring that issue before the

Court.

      Citing In re J.F., 27 A.3d 1017, 1025 (Pa. Super. 2011), Foster

Mother also claims that, even without standing, the lack of notice and

opportunity to be heard with regard to her is reversible error, absent a

showing that these requirements were constructively met.            Brief for

Appellant at 10.    Foster Mother urges that, in accordance with section

6336.1(a), she was entitled to notice and an opportunity to be heard prior to

the dependency court’s adjudication of the Petitions for modification of the

Children’s placement under Pa.R.J.C.P. 1006(A)(2). Brief for Appellant at 9.

      In In re J.F., this Court recognized that a foster mother, who lacked

standing in a dependency matter, had the right to notice and an opportunity

to be heard.     In re J.F., 27 A.3d at 1021 (relying on 42 Pa.C.S.A.

§ 6336.1(a)).   In that case, this Court ruled that, although there was not

strict adherence to the rules concerning notice to the foster parent under the

Pennsylvania Rules of Judicial Procedure, the foster mother was made aware

of the proceedings, and a meaningful hearing was conducted. Id. at 1023-

24.




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      Unlike the foster mother in In re J.F., there is nothing in the record to

demonstrate that Foster Mother sought to be heard at the proceedings

regarding the removal of the Children.        The record reflects that Foster

Mother knew about the removal of the Children when they were taken from

her home on June 20, 2013. However, Foster Mother did not file a motion

seeking to participate in the first hearing regarding the removal of the

Children from her home, occurring on September 3, 2013.             Nor did she

attempt to participate in the second hearing, occurring on December 3,

2013. Foster Mother filed her Motions for a permanency review hearing, to

determine placement of the Children, on December 18, 2013, approximately

six months after the Children’s removal from her home on June 20, 2013.

Thus, Foster Mother’s argument concerning the denial of due process in the

removal process in this matter, based on In re J.F., is misplaced. By her

six-month delay, she obviously is seeking to advocate for herself as a foster

parent deserving of the Children’s placement with her, instead of seeking to

act in the best interests of the Children.

      As stated in the Comment to Rule 1606,

      [s]tability 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.

Pa.R.J.C.P. 1606, cmt.    We conclude that Foster Mother’s failure to file a

motion in relation to the removal hearings, and instead seeking to become a



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party to the dependency proceeding, where she lacks standing, is fatal to

her present appeals.

      As Foster Mother’s appeal is from the denial of her Motions for a

permanency review hearing regarding the placement of the Children, and, as

she lacked standing to file such a Motions, we are constrained to quash

Foster Mother’s appeals for lack of standing.

      Applications to Quash granted; appeals quashed; Superior Court

jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2015




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