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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.S.S., A            :   IN THE SUPERIOR COURT OF
MINOR                                    :        PENNSYLVANIA
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APPEAL OF: R.S., FATHER                  :   No. 2518 EDA 2016

                   Appeal from the Order Entered July 7, 2016
                in the Court of Common Pleas of Monroe County
                       Civil Division at No: 14 OCA 2016

BEFORE:      FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 23, 2017

     R.S. (“Father”) appeals from the order entered July 7, 2016, in the

Court of Common Pleas of Monroe County, which dismissed his petition to

involuntarily terminate the parental rights of his aunt, W.S. (“Adoptive

Mother”), to his biological daughter, A.S.S. (“Child”). After careful review,

we affirm.

     The factual and procedural history of this matter is not entirely clear

from the certified record.   According to the trial court’s opinion, Child was

born in 2005 and adjudicated dependent in September 2012.          Trial Court

Opinion, 8/29/16, at 1.      Child was then placed in the care of Adoptive

Mother in February 2013. Id. Both Father and Child’s mother relinquished

their parental rights to Child voluntarily in January 2014, and Adoptive

Mother adopted Child in August 2014. Id. at 1-2. Father was incarcerated

at the time he relinquished his parental rights, but was released at some
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point later that year.    Id. at 1; N.T., 7/5/2016, at 24. On November 25,

2015, Father and Adoptive Mother signed a written custody agreement. See

Petitioner’s Exhibit 1 (Custody Agreement).      The agreement provided that

Father would have sole legal and physical custody of Child. Id. The record

reveals that Father did not exercise custody of Child pursuant to the

agreement, and that Child has continued to reside with Adoptive Mother.

N.T., 7/5/2016, at 23, 26.

      On March 28, 2016, Father filed a petition to involuntarily terminate

the parental rights of Adoptive Mother. The trial court conducted a hearing

on May 17, 2016, during which the court heard the testimony of Father and

Adoptive Mother.    Following the hearing, on May 20, 2016, the trial court

entered an order directing Father’s counsel to prepare a brief on the issue of

whether Father possessed standing to file the involuntary termination

petition. The trial court also appointed a guardian ad litem (“GAL”) for Child,

and   directed   Monroe    County   Children   and   Youth   to   conduct   home

assessments of Adoptive Mother and Father, based on allegations made by

Father that Child was being abused while in Adoptive Mother’s care.

      On June 21, 2016, Child’s GAL filed a motion to strike Father’s

involuntarily termination petition on the basis that Father lacked standing, as

well as a petition to void the November 25, 2015 custody agreement ab

initio. The trial court conducted a second hearing on July 5, 2016, during

which the court heard testimony from Father; Father’s friend, K.S.; Father’s


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cousin, F.C.; Father’s fiancée, S.F.; and Jennifer Payne, who testified on

behalf of Monroe County Children and Youth. On July 7, 2016, the trial court

entered an order granting the GAL’s motion to strike and dismissing Father’s

petition due to a lack of standing. Father timely filed a notice of appeal on

August 4, 2016.    Father filed an amended notice of appeal on August 5,

2016, which included a concise statement of errors complained of on appeal.

      Father now raises the following issue for our review. “Does [Father]

have standing under 23 Pa.C.S.A. § 2512(a)(3) to file a petition for the

involuntary termination of parental rights?” Father’s Brief at 4.

      Father’s sole issue on appeal presents a question of law. As such, our

standard of review is de novo, and our scope of review is plenary.        In re

Hickson, 821 A.2d 1238, 1242 (Pa. 2003) (citing Phillips v. A-Best

Products Co., 665 A.2d 1167, 1170 (Pa. 1995)).

      Standing to file a petition for involuntary termination of parental rights

is governed by Section 2512(a) of the Adoption Act, 23 Pa.C.S.A. § 2512(a).

This section provides as follows.

      (a) Who may file.--A petition to terminate parental rights with
      respect to a child under the age of 18 years may be filed by any
      of the following:

            (1) Either parent when termination is sought with
            respect to the other parent.

            (2) An agency.

            (3) The individual having custody or standing in loco
            parentis to the child and who has filed a report of



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              intention to adopt required by section 2531 (relating
              to report of intention to adopt).

              (4) An attorney representing a child or a guardian
              ad litem representing a child who has been
              adjudicated dependent under 42 Pa.C.S. § 6341(c)
              (relating to adjudication).

23 Pa.C.S.A. § 2512(a).

       Father argues that he had standing to file a termination petition

pursuant to Section 2512(a)(3). Father’s Brief at 8. Father concedes that

he does not stand in loco parentis with respect to Child, but insists that he

has custody of Child pursuant to his November 25, 2015 agreement with

Adoptive Mother.       Id.    Father further contends that the trial court acted

improperly by refusing to accept this informal custody agreement, because

such agreements are typically in the best interest of the child and should be

favored as a matter of public policy.1 Id. at 8-11

       The trial court rejected Father’s contention that he has standing

pursuant to Section 2512(a)(3). The court reasoned that the November 25,

2015 custody agreement between Father and Adoptive Mother is invalid, as

Adoptive Mother was unrepresented at the time she signed the agreement,

and because the agreement “was not the product of an arms-length

transaction that took into consideration the best interests of Child and was
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1
  We observe that Father did not file a report of intention to adopt with his
termination petition as Section 2512(a)(3) requires. However, 23 Pa.C.S.A.
§ 2531(c) provides that a prospective adoptive parent is not required to file
a report of intention to adopt “when the child is the child . . . of the person
receiving or retaining custody or physical care.”



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neither presented to nor adopted by [the trial court].” Trial Court Opinion,

8/29/16, at 9. The trial court further emphasized that Father and Adoptive

Mother never actually followed the agreement, and that Father has had no

recent contact with Child.2 Id.

       We agree with the trial court that Father lacked standing to file an

involuntary termination petition with respect to Adoptive Mother.    Initially,

our case law is clear that “custody,” as the term is used in Section

2512(a)(3), refers to legal custody. In re Adoption of Crystal D.R., 480

A.2d 1146, 1148 (Pa. Super. 1984). This Court has explained that even a

child’s foster parents, with whom that child has lived continuously for four

and a half years, do not possess standing to file an involuntary termination

petition, because they lack legal custody over that child. See id.

       Moreover, “[b]ecause children are not mere chattel, agreements

regarding custody and visitation are always subject to court review and

adjustment in the best interests of the child.” Huss v. Weaver, 134 A.3d

449, 455 (Pa. Super. 2016), appeal denied, 2016 Pa. LEXIS 2245, 2016 WL

5799062 (Pa. 2016) (citations omitted). “Although an agreement between

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2
  The trial court also suggested that this appeal should be dismissed due to
Father’s failure to request a transcript of the July 5, 2016 hearing. Trial
Court Opinion, 8/29/16, at 5-7. The trial court docket indicates that this
transcript was requested on September 21, 2016, and a copy of the
transcript is contained in the certified record on appeal. We therefore
decline to dismiss Father’s appeal on that basis.




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parties as to custody is not binding upon the court, . . . where the parties’

agreement is incorporated into a court order, the order binds the parties and

governs further court action in the same manner as any other custody

order[.]” Daniel K. D. v. Jan M. H., 446 A.2d 1323, 1324 n.1 (Pa. Super.

1982) (citations omitted); see also Pa.R.C.P. 1915.7 (“If an agreement for

custody is reached and the parties desire a consent order to be entered,

they shall note their agreement upon the record or shall submit to the court

a proposed order bearing the written consent of the parties or their

counsel.”).

        Here, Father testified that Adoptive Mother agreed to let Child live with

him after he purchased a home in November of 2015, which resulted in the

parties’ November 25, 2015 custody agreement. N.T., 7/5/2016, at 14-15.

Despite this agreement, Father admitted that he has not seen Child at all

since around the time of the 2015 Thanksgiving holiday.          Id. at 23, 26.

Father further admitted that no court has ever approved the parties’ custody

agreement, nor has he attempted to present the agreement to a court for

approval. Id. Given that Father has had no contact with Child since at least

November 2015, and given that the custody agreement was never adopted

as an order of court, it is clear that Father did not possess legal custody of

Child at the time he filed his involuntary termination petition on March 28,

2016.      Father therefore did not have standing to file an involuntary

termination petition pursuant to Section 2512(a)(3).




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      Accordingly, because we conclude that it was proper for the trial court

to dismiss Father’s petition to involuntarily terminate the parental rights of

Adoptive Mother based on his lack of standing, we affirm the court’s July 7,

2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




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