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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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