In the Interest of: S.W. Appeal of: A.E.

J-A18014-23

2024 PA Super 45

IN THE INTEREST OF: S.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: A.E. AND A.E. :
:
Appellants :
:
: No. 22 WDA 2023

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

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

OPINION BY KUNSELMAN, J.: FILED: March 13, 2024

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.

Foster parents are generally prohibited from participating in dependency

proceedings, but there exists a judicially created exception to this rule –

____________________________________________

1 The Child’s birth father was unknown.
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namely, the “prospective adoptive parent exception.” See In the Interest

of M.R.F., 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

born 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’

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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.S.A. § 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.S.A. § 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

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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 re-

filed 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

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complained of on appeal. See Pa.R.A.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).

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

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a comprehensive review of the record for assurance the findings and credibility

determinations are competently supported.” Interest of K.N.L., 284 A.3d

121, 132-33 (Pa. 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.

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.

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:

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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 (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 for a planned period – either temporary
or extended. This is unlike adoptive placement which
implies a permanent substitution of one home for
another.’” [Smith,] 413 U.S. at 824, citing A. Kadushin,
Child Welfare Services 355 (1967).

Priester v. Fayette County Children and Youth Services, 512 A.2d 683

(Pa. Super. 1986) (emphasis original).

In Priester, this Court concluded that, given the temporary nature of

the foster care, the original foster parents lacked standing to challenge the

agency’s removal of the child and subsequent placement with new foster

parents. Priester, 512 A.2d at 685.

A few years later, this Court recognized the expectation created when

individuals care for a dependent child in anticipation of an adoption. In Mitch

v. Bucks County Children and Youth Social Service Agency, 556 A.2d

419, 423 (Pa. Super. 1989), the child was placed with the appellants through

a private organization that contracted with the local child protective services

agency. The agency then removed the child and placed him with another

family. The appellants sued for the child’s return. After considering decisions

from other states, we concluded that the appellants had standing to challenge

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the removal, because they were “prospective adoptive parents.” Mitch, 556

A.2d at 423.

Critically, we distinguished “prospective adoptive parents” from foster

parents to explain why they warranted standing:

[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.

Mitch, 556 A.2d at 423 (emphasis added).

Under Mitch, prospective adoptive parents suffer a direct and

substantial injury when the child is removed and placed with new caregivers,

who are not the biological parents. They are “injured” because that removal

forecloses the possibility of future adoption – an adoption they reasonably

expected. This injury implicates traditional notions of standing, which enables

them to challenge the child’s removal. Mitch did not define when “prospective

adoptive parent” status attaches – i.e., before or after the termination of

parental rights. But under its facts, we noted that the prospective adoptive

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parents sought intervention after the rights of the biological parents were

terminated.

In re Griffin, 690 A.2d 1192, 1201 (Pa. Super. 1997), this Court

reiterated the difference between foster parents and “prospective adoptive

parents.” But we added that foster parents could become “prospective

adoptive parents” during dependency proceedings. See Griffin, 690 A.2d at

1201 (citing Mollander v. Chiodo, 675 A.2d 753, 757 (Pa. Super. 1996) and

In re: Baby Boy S., 615 A.2d 1355, 1357-58 (Pa. Super. 1992) aff’d per

curiam, 657 A.2d 484 (Pa. 1995)). In Griffin, the local protective services

agency sought to remove the children from the appellants’ care – again, after

the biological parent’s rights were terminated. We ruled that appellants had

standing under the “prospective adoptive parent” exception to challenge the

removal.

Significantly, in December 1998, after Mitch and Griffin were decided,

the Legislature enacted 42 Pa.C.S.A. § 6336.1. That statute explicitly

addressed foster parents’ ability to be heard in a dependency proceeding. The

statute has been amended several times, but Subsection (a) has largely

remained the same. The current iteration of Section 6336.1(a) provides:

(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

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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(a) (emphasis added).

To the extent that the terms “foster parent” and “pre-adoptive parent”

represent totally separate classes of individuals, as Mitch and Griffin suggest,

the plain language of the statute encapsulates both classes, and declares that

neither shall have standing in a dependency proceeding unless they had first

been awarded legal custody. (In dependency proceedings, the local child

protective services agency typically retains legal custody).

As noted, however, both Mitch and Griffin are cases where the

termination of parental rights had already occurred, and the dependency

proceedings were over. Thus, Mitch and Griffin do not conflict with Section

6336.1(a), if they are read to mean that prospective adoptive parents only

have standing to participate in the subsequent adoption proceedings.

Following Mitch, Griffin, and the enactment of Section 6336.1(a), our

courts had to resolve one question: Could the “prospective adoptive parent”

exception apply to foster parents in the midst of dependency proceedings, in

light of the plain language of 42 Pa.C.S.A. § 6336.1(a)?

This Court has applied Section 6336.1(a) on several occasions to rule

that foster parents lacked standing to intervene in dependency matters.

Indeed, an initial line of cases suggested that the Legislature foreclosed the

ability of any foster parents, in dependency proceedings, to challenge the

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removal of the child from their care. See, e.g., In re L.C., II, 900 A.2d 378,

381-82 (Pa. Super. 2006); see also In re J.S., 980 A.2d 117, 121 (Pa. Super.

2009).

Our decision in In re N.S., 845 A.2d 884, 887 (Pa. Super. 2004) was

the closest we came to holding that the prospective adoptive parent exception

was abrogated by statute. In N.S., the foster mother initially challenged the

removal of the child from her care, but she withdrew her appeal. Instead, she

sought visitation, relying on the “prospective adoptive parent” exception

under Mitch. We held that the foster mother merited no relief, because Mitch

was decided prior to the enactment of Section 6336.1 and because there was

never a pre-adoptive placement agreement, as there was in Mitch. See N.S.,

845 A.2d at 887.

Later, a subsequent line of cases suggested that the “prospective

adoptive parent” exception survived the statute’s enactment. See, e.g., In

re Adoption of B.R.S., 11 A.3d 541, 546 (Pa. Super. 2011) (observing that

the foster parents qualified as prospective adoptive parents, but this status

did not enable them to file their own petition to terminate a parent’s rights;

this status only allowed them to challenge the removal of the child from their

care); see also In re S.H.J., 78 A.3d 1158, 1162-63 (Pa. Super. 2013)

(opining that the appellant-aunt failed to preserve the issue of whether she

was a prospective adoptive parent but noting that she did not meet this status

in any event); and see In Interest of J.P., 178 A.3d. 861, 866-867 (Pa.

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Super. 2018) (noting that appellant did not preserve the question of whether

Section 6336.1(a) abrogated the prospective adoptive parent exception).

Ultimately, the most authoritative precedent we have on this issue is In

the Interest of M.R.F., III, 182 A.3d 1050 (Pa. Super. 2018). There, the

juvenile court denied the foster parents’ petition to intervene in the

dependency proceedings. We first explained that the foster parents were not

parties to the dependency proceedings, as contemplated by Section 6336.1(a)

or any other section of the Juvenile Act. M.R.F., III, 182 A.3d at 1055.

However, we then extended the “prospective adoptive parent” exception to

those proceedings.

“[O]ur case law has carved a narrow exception to permit the limited

participation of a foster resource who has attained the 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.” Id. at 1056 (citing Mitch, 556 A.2d at 423; Griffin, 690 A.2d

at 1201). We defined “prospective adoptive parents” as “a would-be parent

[who] has a legitimate, genuine, and reasonable expectation of adoption, even

though the authority to finalize the adoption is contingent upon the [] agency’s

ultimate approval.” Id. at 1054, n.2 (citing Griffin, supra). We concluded

that the child’s foster parents were prospective adoptive parents, thereby

entitling them to standing in the dependency action.

In M.R.F., III, the lower court initially followed Mitch and Griffin, and

ruled that the foster parents did not obtain prospective adoptive status,

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because the record was devoid of “any official action altering [their] status

from foster parents to pre-adoptive parents.” M.R.F., III, 182 A.3d at 1057

(quoting the trial court opinion).

On appeal, however, the M.R.F., III Court determined the certified

record belied the lower court’s conclusion that foster parents were not

“prospective adoptive parents.” Id. The facts showed, the foster parents

cared for the child practically since birth; the agency considered the foster

parents to be a pre-adoptive resource; the foster parents completed an

adoption program; although the permanency goal was still reunification, the

juvenile court pursued the concurrent goal of adoption; and the local

protective services agency supported the potential adoption. See id. We

discounted that the child was not immediately eligible for adoption (because

the parental rights remained intact) and that the juvenile court never formally

recognized the foster parents’ change in status. See id.

Notwithstanding the foster parents’ “prospective adoptive” status, we

held that the juvenile court was right to deny their petition to intervene

because of the relief they were seeking. The foster parents sought to

intervene only to challenge the court’s decision to increase the number of

visits between the mother and the child. We held that such a request was

beyond the scope of the prospective adoptive parent exception, which grants

foster parents standing to challenge only the removal of the child from their

home. Id. at 1059. In other words, prospective adoptive parents can

challenge the court’s decision only as it affects their interest in adoption vis-

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à-vis other foster placements, and not as it affects the rights of the biological

parents. Id.

In essence, our decision in M.R.F., III affirmed what our decisions in

B.R.S. and S.H.J., supra suggested – namely: the “prospective adoptive

parent” exception survived the enactment of Section 6336.1(a); that the

exception is available to foster parents involved in dependency proceedings,

who have prospective adoptive status; but that this standing is only for a

limited purpose. Because prospective adoptive parent standing does not

permit intervention in the dependency proceedings across the board, M.R.F.,

III tried to reconcile the judicially created standing exception with the plain

language of Section 6336.1(a).

Two years later, another panel of this Court held, in a non-precedential

decision, that the Juvenile Act abrogated the “prospective adoptive parent”

exception. Interest of K.R., 239 A.3d 70 (Table), 2020 WL 3989162 (Pa.

Super. 2020). There, the local child protective services agency removed the

child from the foster parent’s care after receiving reports that other children

in the home were abused. The foster parent, who had been a pre-adoptive

resource for two years, sought to challenge the removal, but the juvenile court

ruled that she lacked standing. The foster parent appealed. We first

observed, as we did in M.R.F., III, that foster parents generally do not qualify

as parties. See K.R. at *4.

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But the Court in K.R. went a step further, and ruled that Section

6336.1(a) has abrogated the “prospective adoptive parent” exception

altogether:

Prior to the enactment of Section 6336.1(a), our case law
provided that a “prospective adoptive parent” possessed
standing for the limited purpose of challenging the removal
of a child from his or her care. See Mitch v. Bucks County
Children and Youth Social Service Agency, 556 A.2d
419 (Pa. Super. 1989), appeal denied, 571 A.2d 383 (Pa.
1989); In re Griffin, 690 A.2d 1192 (Pa. Super. 1997),
appeal denied, 700 A.2d 441 (Pa. 1997), certiorari denied,
523 U.S. 1004 (1998). Because Section 6336.1(a) plainly
changes this prior case law, we conclude that a foster parent
is not entitled to any form of standing in a dependency
proceeding absent an award of legal custody, regardless of
his or her “prospective adoptive” status.

K.R., at *5, n.7.

For the Court in K.R. to reach this holding, however, it had to account

for our opinion in M.R.F., III, which was decided after Section 6336.1(a) was

enacted. To do so, the K.R. Court concluded that the language concerning

the “prospective adoptive parent” exception was mere dicta and not a barrier

to its holding. See K.R., at *5, n.7. Ultimately, the Court ruled that the foster

parent lacked standing to contest the removal of the Child.

Returning to the instant matter, the litigants and juvenile court

struggled with what to make of our fractured jurisprudence. When CYF

informed the juvenile court that it wanted to end the Child’s placement with

Appellants, Appellants did not officially seek to intervene. Instead, Appellants

challenged the removal only insofar as Section 6336.1(a) would permit –

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which was to attend the hearing and be heard. Only after the removal did the

Appellants seek to formally intervene. During the ensuing argument hearing

on intervention, the juvenile court repeatedly pressed the litigants for their

understanding of the prospective adoptive parent exception, but none could

offer much clarity. Ultimately, the juvenile court was persuaded by CYF’s

position that the prospective adoptive parent exception was abrogated by

Section 6336.1(a), and that M.R.F. III was inapposite in light of K.R.

Thus, the first question – indeed, the essential question – we must

decide is whether M.R.F. III is binding on this Court. The answer to that

question rests on two axioms. First, a panel of the Superior Court cannot

overrule another panel of the Superior Court. See, e.g., Commonwealth v.

Beck, 78 A.3d 656, 659 (Pa. Super. 2013). Second, a non-precedential

decision (formerly titled unpublished memoranda decisions) holds persuasive,

but non-binding, authority. See, e.g., E.C.S. v. M.C.S., 256 A.3d 449, 456

(Pa. Super. 2021); see also 210 Pa. Code. § 65.37; and see Pa.R.A.P.

126(b).

Put plainly, K.R. was bound by M.R.F., III and could not overrule it.

However, K.R. could distinguish M.R.F., III, and in its view, the K.R. Court

did so by holding that the prospective adoptive parent exception analysis in

M.R.F., III was dicta. Because K.R. is non-precedential, this Panel is not

bound by K.R.’s interpretation of M.R.F., III. We may decide the dicta

question for ourselves.

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Our Supreme Court has defined obiter dictum (dicta being the plural)

as: “A judicial comment made while delivering a judicial opinion, but one that

is unnecessary to the decision in the case and therefore not precedential

(although it may be considered persuasive).” Commonwealth v. Romero,

183 A.3d 364, 400 n.18 (Pa. 2018) (Opinion Announcing Judgment of the

Court) (quoting BLACK’S LAW DICTIONARY 1240 (10th ed. 2014); id. cf.

“holding.” BLACK’S LAW DICTIONARY 849 (10th ed. 2014) (“A court’s

determination of a matter of law pivotal to its decision; a principle drawn from

such a decision.”).

Although we have significant misgivings about the prospective adoptive

parent exception in dependency proceedings (discussed infra), the

conclusions in M.R.F., III, regarding the exception were not mere dicta, but

central to its holding. M.R.F., III held that the foster parents in that case

met the prospective adoptive parent exception, full stop. That determination

meant the exception survived the enactment of Section 6336.1(a) and that

foster parents have standing in dependency proceedings for a limited purpose.

This was the first part of the Court’s holding.

The Court only denied the foster parents’ intervention, because of the

type of relief they requested. The foster parents sought to employ the

exception only to limit visitation between the mother and the dependent child.

This additional aspect of the holding did not render the initial standing

determination “a passing comment” which was “unnecessary to the decision.”

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Rather, the Court concluded that the foster parents had standing to intervene

but could not seek the relief they requested.

The determination that the foster parents met the prospective adoptive

parent exception was a “determination of a matter of law pivotal to its

decision;” it was “a holding,” which binds other three-judge panels of this

Court. Beck, supra. Put plainly, M.R.F., III remains good law, and we are

bound by its determination. Because K.R. was a non-precedential decision,

we are not confronted with a split of authority within our Court.

Nonetheless, we doubt the holding in M.R.F., III could withstand a

closer examination by higher authorities, and we feel compelled to address

these concerns. There are two reasons for our doubt.

First, we question whether the plain language of Section 6336.1(a) could

permit the exception. The panel in M.R.F., III was not directly confronted

with the question of whether the exception was abrogated by statute. When

faced with that question squarely, it would seem that Section 6336.1(a)

plainly disallows standing to any foster parent, pre-adoptive parent, or relative

providing care to the child, at least when it comes to the dependency

proceedings – that is, there should be no exception to non-party standing

while a parent’s rights remain intact. As a matter of statutory construction,

Section 6336.1(a) appears fairly unambiguous insofar as it simply does not

grant foster parents – or pre-adoptive parents – any standing in any juvenile

matter unless they have been awarded legal custody. Under this provision,

foster parents in dependency proceedings are entitled to notice of the hearing,

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and they are entitled to be heard, but that would appear to be the extent of

their rights.2

Second, we doubt that a foster parent’s interest in a potential adoption

could be superlative to the rights of parents or to the duty of local child

protective services agencies to reunify families. As the law stands today,

foster parents who achieve prospective adoptive status are entitled to

intervene only to protect their interest in a potential adoption. We noted

supra that their “standing” comes from the injury they would sustain if their

bond with the foster child were severed.

By extending the holdings of Mitch and Griffin to foster parents

involved in dependency proceedings, M.R.F., III implicitly3 recognized the

shift in how our society has come to understand the role of foster parents.

The notion that foster parents do not – or should not – return the emotional

bonds with the foster children is archaic and incompatible with our juvenile

law’s modern approach of concurrent permanency-goal planning (e.g.,

parental reunification and foster parent adoption). See Priester, 512 A.2d
____________________________________________

2 These rights should not be understated. The foster parents’ views during
the dependency proceedings are integral to the juvenile court’s understanding
of the child’s best interests. The foster parents’ involvement in these hearings
also helps the court understand whether the foster parents could be a viable
pre-adoption resource. However, these rights are limited to notice and
participation as a fact-witness, not as a party to the dependency proceedings
(discussed infra).

3 Here, too, we note that the panel in M.R.F., III was not directly confronted

with the question of whether the prospective adoptive parent exception should
be extended to dependency proceedings, but that was certainly the effect of
its decision.

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683 (citing Child Welfare League of America, Standards for Foster Family Care

Service 5 (1959)); cf. In re R.J.T., 9 A.3d 1179, 1191 n.14 (Pa. 2010)

(observing that the Pennsylvania Dependency Benchbook recommends

concurrent planning as a “best practice.”); see also In the Interest of K.T.,

296 A.3d 1085, 1105-1106 (Pa. 2023) (requiring courts to consider whether

the child is in a pre-adoptive foster home and has a bond with the foster

parents when deciding whether to involuntarily terminate a parents rights

under 23 Pa.C.S.A. § 2511(b)).

Additionally, the outdated expectation that foster parents should not

become attached to foster children conflicts with the current government

policy encouraging bonding between foster parents and the children. See

Pennsylvania Needs Foster Families, Pa. Dep’t. Human Servs. (last visited Feb.

21, 2024) https://www.dhs.pa.gov/AdoptPAkids/Pages/Foster-Parent.aspx

(stating “By bonding with their foster families, the child will be better prepared

for life’s ups and downs because they were loved and cared for by everyone

involved in their care.”).

To be sure, we are profoundly sympathetic to the emotional bonds that

develop between foster parents and the children in their care. The children

often refer to their foster parents as “mom and dad,” and they consider the

other children in the home to be their siblings. To that end, our laws have

repeatedly and thoroughly stressed how stability is vital to the healthy

development of a child. See In re D.C.D., 105 A.3d 662, 676 (Pa. 2014)

(“[I]t is beyond cavil that the protection of children, and in particular the need

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to provide permanency for dependent children, is a compelling state

interest.”); see also In re T.S.M., 71 A.3d 251, 257, n.14 (Pa. 2013)

(discussing the dangers of “foster care drift”); and see 23 Pa.C.S.A. §

5328(a)(4), (9) (identifying stability factors to consider when awarding

custody under the Child Custody Act).

Ironically, foster parents sacrifice their own sense of stability so that the

children might have the same. They must love the children as any parent

would love their child, without reservation, while knowing full well that the

court may order reunification with the biological parent at any point. Foster

parents may exist in this limbo for years. Given the shortage of foster parents,

providing these individuals a modicum of assurance might be for the

betterment of all.

However, public policy questions must be left to our Legislature and our

Supreme Court. See, e.g., Z.F.1 by & through Parent v. Bethanna, 244

A.3d 482, 494 (Pa. Super. 2020). And notwithstanding the emotional bond

between pre-adoptive foster parents and the child in their care, we question

whether the prospective adoptive parent’s "legitimate expectation” interest

could survive constitutional scrutiny.4 We also question whether the
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4 The government – by way of the local child protective services agency – may

narrowly infringe upon the parent’s constitutional right to the care, custody,
and control of the child, because it has a compelling state interest – namely,
the protection and stability of the child. See, e.g., In re D.C.D., 105 A.3d
662, 676-77 (Pa. 2014).

(Footnote Continued Next Page)

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prospective adoptive parent’s interest in adoption could be superlative to the

local child protective agency’s duty to exercise reasonable efforts to achieve

parental reunification. “[T]he Legislature has provided that the relationship

between the foster parents and the child is by its very nature subordinate

both to the relationship between the agency and the child and to the

relationship between the child and the child’s parents.” In re Adoption of

Crystal D.R., 480 A.2d 1146, 1150 (Pa. Super. 1984) (emphasis added); see

also In re G.C., 735 A.2d 1226, 1228 (Pa. 1999) (Opinion in Support of

Affirmance). Juvenile courts and local protective services agencies must be

free to navigate parental reunification without interference from non-parties,

even as they identify and implement a concurrent adoption goal. This has

always been the intention of the Legislature, which is why, one could assume,

it enacted Section 6336.1(a).

____________________________________________

The prospective adoptive parent exception might also infringe upon a parent’s
rights – assuming that the parent’s rights are still intact. See, e.g., D.P. v.
G.J.P., 146 A.3d 204 (Pa. 2016); see also U.S. CONST. amend. XIV, § 1
(forbidding states from depriving “any person of life, liberty, or property,
without due process of law,” or from denying to any person within their
jurisdiction “the equal protection of the law”).

Some might question the constitutionality of the prospective adoptive parent
exception as applied to foster parents involved in dependency proceedings;
for how can foster parents assert a “pre-adoptive” interest to a child, when
parental reunification is a permanency goal. And although the need to provide
the child stability is a compelling state interest, ultimately the courts might
have to decide whether the preservation of foster parents’ legitimate
expectation of adoption is narrowly tailored to advance that interest.

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Ultimately, these concerns are not presently before us. Whether there

is a conflict between M.R.F., III and Section 6336.1(a), or whether M.R.F.,

III was wrongly decided are questions that can only be answered by an en

banc panel of this Court or our Supreme Court. At this point, we are bound

by M.R.F., III.

Constrained to apply M.R.F., III, it is obvious that Appellants met the

prospective adoptive parent exception. A proper inquiry requires courts to

take an objective view of the full record and determine whether the foster

parents had a legitimate expectation of adopting the Child. M.R.F., III, 182

A.3d at 1057. The “legitimate, genuine, reasonable expectation of

adoption” is the polestar, not whether the foster parents were formally

recognized as “prospective adoptive” foster parents, either by the court or by

the agency. See id. at 1054, n.2. The foster parents’ “legitimate expectation”

is what encourages foster parents to “form emotional bonds with the child.”

Id. at 1056 (citing Mitch, supra at 419; Griffin, supra at 1201). When an

agency removes the child, the possibility of the adoption is foreclosed, and

those bonds are severed. Id. This is a “direct and substantial injury” that

warrants standing. It starts with the “legitimate expectation” of adoption.

The inquiry is an objective one; we clarified the foster parents’ subjective

beliefs are immaterial, but, so too, is the lack of any formal designation. Id.

at 1057.

When considering the full record here, it is evident Appellants had a

legitimate expectation of adoption, contingent upon the termination of

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Mother’s rights; thus, Appellants were “prospective adoptive parents.” Like

M.R.F., III, Appellants had fostered the Child practically since birth. 5 Also

like M.R.F., III, CYF started taking action to facilitate the post-termination

adoption. The caseworker advised Appellants they were the only prospective

adoptive resource. Appellants were assigned a separate “adoption

caseworker,” evincing CYF’s belief that Appellants would adopt. Appellants

began filling out the necessary paperwork. Pressley Ridge, the service

provider, was also in favor of the Appellants’ potential adoption. Appellants

began discussing with the caseworkers whether they would enter into a

voluntary post-adoption contact agreement with the Child’s biological family.

Whether there was a formal recognition of pre-adoptive status (like in Griffin)

or an adoption agreement (like in Mitch) are perhaps sufficient facts, in an

objective inquiry, to demonstrate a legitimate expectation of adoption. But

the absence of those facts is not dispositive. See id.

CYF counters that Appellants could not have an expectation of adoption,

because reunification remained the permanency goal of the dependency

proceedings. We are not persuaded by this argument for several reasons. For

one, M.R.F., III held that foster parents could still have a legitimate

expectation of adoption, even when the parental rights remain intact – indeed,

____________________________________________

5 In M.R.F., III, the child entered the home of his foster parents when he was

four months old and had been nearly four years old at the time of our decision.
Here, the subject Child entered Appellants’ care in October 2020 when she
was one month old and resided with Appellants until September 2022.

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even when the visits between the parent and the child increase. See M.R.F.,

III, 182 A.3d at 1058. Moreover, even though the permanency goal was still

reunification, CYF and the juvenile court anticipated that Mother’s rights would

eventually be terminated. CYF filed its petition to terminate Mother’s rights in

March 2022, and the juvenile court had scheduled a goal change hearing for

May 2022, both of which were months before CYF decided to remove the Child

from Appellants’ care. Indeed, the August 2022 removal hearing was held on

the date that initially had been reserved for the termination hearing.

Two years into the Child’s dependency case, where Appellants had been

the caregivers since the Child was a newborn, it strains credulity to believe

that CYF did not consider Appellants to be the pre-adoptive resource (let alone

a pre-adoptive resource). Under these facts, Appellants had a legitimate,

genuine, and reasonable expectation that they would eventually adopt the

Child, if and when Mother’s rights were terminated. Therefore, they

established that they met the prospective adoptive parent exception, as set

forth in M.R.F., III, and we must conclude the juvenile court erred when it

denied their motion to intervene.6

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6 Significantly, the issue of intervention is wholly different than the substantive

question about whether the Child should have been removed from – or
returned to – Appellants’ care. The only question at that juncture was whether
Appellants had a legitimate, genuine, and reasonable expectation that they
would eventually adopt the Child. If so, then they had standing to pass
through the courthouse doors and challenge the removal.

(Footnote Continued Next Page)

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Having addressed Appellants’ first two issues on appeal, and we proceed

to the third issue: whether the juvenile court erred or abused its discretion by

suggesting that Appellants waived their right to intervene. Preliminarily, we

note that although the juvenile court suggested waiver, it did not deny

intervention on this basis.7

We recognize that the juvenile court held an evidentiary hearing on

August 26, 2022 to determine whether the Child should be removed from

Appellants’ care. Appellants were present with counsel, but they conceded

they were not parties and they explicitly said they were not presently seeking

to intervene. See generally N.T., 8/26/22, at 8-12. Because Appellants

were not parties to the dependency proceeding, their rights were limited to

notice and to being heard, pursuant to Section 6336.1(a). Appellants could

not make objections, they could not introduce evidence, nor could they cross-

examine witnesses. See M.R.F., 182 A.3d at 1055. Indeed, the juvenile

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However, we emphasize that the standing inquiry is a legal question that is
“independent of the best-interests considerations.” M.R.F., III, 182 A.3d at
1057. Appellants met the standing threshold, but regarding the relief sought,
deference is given to the lower court’s “longitudinal understanding” of its
dependency case and the best interests of the Child involved. See R.J.T., 9
A.3d at 1190.

7 Our learned colleague in Dissent, who has joined our analysis thus far, would

conclude that Appellants waived their right to intervene. See generally
Dissenting Opinion at 1-8. The Dissent believes that Appellants slept on their
rights when they explicitly told the juvenile court, at the removal hearing, that
they did not seek to intervene in the dependency proceedings as parties. Id.
at 3-4 (citing N.T., 8/26/22, at 6-12).

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court directed Appellants’ counsel to keep Appellants’ testimony brief.8 Only

later, after the removal, did Appellants seek to intervene to have the Child

returned.

Critically, the Rules of Juvenile Court Procedure do not require

intervention at the earliest opportunity. The Juvenile Rules only dictate the

contents of a motion to intervene and require the court to hold a hearing on

the motion. See Pa.R.J.C.P. 1133. The Rules of Civil Procedure provide for

intervention at any time during the pendency of an action. See P.R.C.P. 2327

(“Who May Intervene”). “At any time during the pendency of an action, a

person not a party thereto shall be permitted to intervene therein, subject to

these rules if… (4) the determination of such action may affect any legally

enforceable interest of such person whether or not such person may be bound

by bound by judgment in the action.” Pa.R.C.P. 2327(4).

Perhaps it would have been prudent for Appellants to seek intervention

immediately in August 2022. Hindsight is 20/20, of course. Appellants opted

instead to rely on their right to be heard, per Section 6336.1(a). The path

they chose was initially more conservative, more efficient, and almost

certainly less expensive. Had they successfully persuaded the juvenile court

to deny CYF’s request to remove the Child, then intervention would have been

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8 We cannot say that the juvenile court’s curtailment of the Appellants’
testimony was a violation of their right – as foster parents – to be heard under
Section 6336.1(a). We mention the curtailment, however, to emphasize that
Appellants were mere-fact witnesses. They could not present a full case-in-
chief as to why the Child should remain in their care.

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unnecessary. But even though Appellants could have intervened sooner to

prevent the Child’s removal, it does not follow that they slept on their right to

intervene later to seek the Child’s return.

Appellants’ final issue is whether the juvenile court erred when it failed

to hold an evidentiary hearing on the motion to intervene. The Rules of

Juvenile Court Procedure require courts to hold a hearing on a motion to

intervene. See Pa.R.J.C.P. 1133(b). Moreover, we have held that

“intervention” and “standing” are used interchangeably in the context of

dependency proceedings. M.R.F., III, 182 A.3d at 1055. Although an

evidentiary hearing is typically required to establish standing, the necessity of

such a hearing depends on whether the facts are actually in dispute. See,

e.g., Raymond v. Raymond, 279 A.3d 620, 626-67 (Pa. Super. 2022)

(holding that the trial court was not required to conduct an evidentiary hearing

on standing, where the essential facts were not in dispute).

Appellants’ factual averments were largely uncontested by CYF. To be

sure, CYF and Appellants certainly disagreed as to whether the Child’s removal

was justified, but there appeared to be no genuine dispute of material fact

regarding their “pre-adoptive” status. CYF simply relied on K.R. and took the

position that the legal definition of “prospective adoptive parent” was

irrelevant because Section 6336.1(a) of the Juvenile Act abrogated the

“prospective adoptive parent” exception. Thus, the question before the

juvenile court was a legal one. Given the context of this case, the court did

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not err when it failed to hold an evidentiary hearing, but instead proceeded

by way of legal argument.

As a final note, we clarify the effect of our decision. Although Appellants

demonstrated under M.R.F., III that could intervene in the proceedings, we

must recognize the realty that those proceedings are concluding, and that

intervention is nearly moot.9 Appellants sought to intervene in the

dependency proceedings shortly after the Child’s removal. While the appeal

on their intervention was pending, the orphans’ court terminated Mother’s

rights, as well as the rights of the “Unknown Father.” Mother appealed the

termination, and this Court recently affirmed the orphans’ court’s decision.

See Interest of S.W., 2023 WL 7409888 (Pa. Super. November 8, 2023).

We assume adoption proceedings between CYF, the Child, and her new

prospective adoptive foster parents will transpire imminently. But until court

supervision has been terminated, per Pennsylvania Rule of Juvenile Court

Procedure 1631(a), the effect of our decision means that Appellants can

technically still seek the return of the Child.10
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9 “An issue before a court is moot if in ruling upon the issue the court cannot
enter an order that has any legal force or effect.” Interest of D.R.-W., 227
A.3d 905, 917 (Pa. Super. 2020) (quoting In re D.A., 801 A.2d 614, 616 (Pa.
Super. 2002)); see also E.B. v. D.B., 209 A.3d 451, 466 (Pa. Super. 2019)
(holding we cannot vacate an erroneous interim custody order; “This is
tantamount to ‘unringing the bell’ and rewinding the past two years of [the
child’s] life as if they never happened.”).
10 See, e.g., Pa.R.J.C.P. 1631(a)(4) (providing that court supervision
terminates “when court-ordered services from the county agency are no
(Footnote Continued Next Page)

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We reiterate that our decision concerns the Appellants’ ability to

intervene in the dependency proceedings; it does not concern whether it is in

the best interests of the Child to return to Appellants’ care. Appellants must

also understand that it is beyond the power of the appellate courts to “unring

the bell” or rewind the Child’s life. See E.B., supra. Lastly, we acknowledge

Appellants only wanted to intervene in the dependency proceedings so they

could adopt the Child after Mother’s rights were terminated. Whether

Appellants can rely on their “prospective adoptive parent” status to file a

competing adoption petition is a separate question. See Griffin,, 690 A.2d

at 1197, 1199 (appellants’ “prospective adoptive parent” status, obtained

during the dependency stage, was asserted post-termination to challenge the

child’s removal); but see Interest of K.N.L., 284 A.3d 121, 147 (Pa. 2022)

(distinguishing foster parents from “prospective adoptive parents,” who have

standing to seek adoption, because “prospective adoptive parents” have in

loco parentis standing whereas foster parents typically do not) (citing Mitch,

556 A.2d at 422-23); and see N.S., 845 A.2d at 886-87 (holding that former

foster mother lacked in loco parentis standing to petition for adoption). As

this question is not before us, we make no comment on whether Appellants

can rely on their status as “prospective adoptive parents” to seek the adoption

of the Child. See Sichelstiel v. Sichelstiel, 272 A.3d 530, 539 (Pa. Super.

____________________________________________

longer needed” and, inter alia, “the child has been adopted and services are
no longer needed”); but see generally Pa.R.J.C.P. 1631(a)(1)-(13);
Comment.

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2022) (holding that courts may not render decisions in the abstract or offer

purely advisory opinions).

To conclude: we are constrained to apply M.R.F., III, and under that

precedent, Appellants met the prospective adoptive parent exception. Thus,

the juvenile court erred when it denied Appellant’s petition to intervene. We

conclude further that Appellants did not waive their ability to seek intervention

by waiting until after the Child was removed from their care. Upon remand,

Appellants may intervene in the dependency proceedings to seek the Child’s

return, until such time as those proceedings culminate under Pa.R.J.C.P. 1631.

Under the facts of this case, the juvenile court did not err when it held an oral

argument on Appellants’ motion to intervene, without conducting an

evidentiary hearing. Finally, we make no comment as to whether it would be

in the Child’s best interests to return to Appellants’ care, nor do we comment

as to whether Appellants could file a competing adoption petition.

Order vacated. Case remanded for further proceedings consistent with

this decision. Jurisdiction relinquished.

Judge Lazarus files a Concurring Opinion.

P.J.E. Bender files a Dissenting Opinion.

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3/13/2024

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