Chester County Children and Youth Services v. Cunningham

• Citation: 540 Pa. 258,656 A.2d 1346
• Parties: CHESTER COUNTY CHILDREN AND YOUTH SERVICES, Appellee, v. Donald E. and Middie CUNNINGHAM, Appellants.
• Decision Date: 05 April 1995
• Court: United States State Supreme Court of Pennsylvania

Page 1346

656 A.2d 1346

540 Pa. 258

CHESTER COUNTY CHILDREN AND YOUTH SERVICES, Appellee, v. Donald E. and Middie CUNNINGHAM, Appellants.

Supreme Court of Pennsylvania.

Argued Dec. 5, 1994.

Decided April 5, 1995.

P. Richard Klein, West Chester, for Cunninghams.

Michael Churchill, Philadelphia, for amicus.

E. Craig Kalemjian, Guy A. Donatelli, West Chester, for Chester County Children & Youth Services.

Jean Speiser Polen, West Chester, for Guardian ad litem for the children.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

ORDER

PER CURIAM.

The court being equally divided, the order of the Superior Court 431 Pa.Super. 421, 636 A.2d 1157 (1994), is affirmed.

PAPADAKOS, J., did not participate in the decision of this case.

FLAHERTY, J., files an opinion in support of affirmance which is joined by ZAPPALA and CAPPY, JJ.

MONTEMURO, J., files an opinion in support of reversal which is joined by NIX, C.J., and CASTILLE, J.

MONTEMURO, J., is sitting by designation.

OPINION IN SUPPORT OF AFFIRMANCE

FLAHERTY, Justice.

The issue is whether foster parents have standing to commence adoption proceedings without the consent of the child welfare agency which has legal custody of the foster children. The trial court held that standing was conferred by In re Adoption of Hess, 530 Pa. 218, 608 A.2d 10 (1992), but was reversed by a divided panel of the Superior Court. We would affirm, as neither the adoption statute nor Hess confers standing on foster parents.

Appellants Donald and Middie Cunningham instituted this action by filing reports of intention to adopt their foster daughter, A.L.O., and her brother, N.A.W., then five and two years old, respectively. N.A.W. has been in the care of the Cunninghams since he was ten days old, and A.L.O. since she was two and one-half years old. When the rights of the natural parents were terminated, appellee Chester County Children and Youth Services (CYS) was awarded custody of the children.

Early in 1992, the Cunninghams inquired of CYS whether they might be permitted to adopt A.L.O. and N.A.W. On January 24, 1992, CYS informed the Cunninghams by letter that the agency would not approve them as adoptive parents due to their age and other factors. Mr. Cunningham was then 63 and Mrs. Cunningham 50. Another factor was the care needed by the Cunninghams' adopted children Joshua and Tatiana, both nine years old at the time, biracial children who had been in the Cunninghams' foster care prior to their CYS-approved adoption in July, 1991. The agency concluded that the age discrepancy between the Cunninghams and A.L.O. and N.A.W., coupled with the demands placed on the family by the recently adopted nine-year-olds, created a situation where the best interest of the children, A.L.O. and N.A.W., would be better served if they were adopted by one of the many younger couples available and willing to adopt them. ¹

In spite of the disapproval of CYS, the Cunninghams filed reports of intention to adopt both children. CYS filed preliminary objections based on the Cunninghams' lack of standing. The Cunninghams argued that CYS unreasonably withheld its consent and that a hearing would be necessary to assess the reasonableness of CYS's lack of consent. The trial court overruled CYS's preliminary objections, certifying that an immediate appeal of the interlocutory order might materially advance the ultimate termination of the matter. The Superior Court accepted jurisdiction pursuant to 42 Pa.C.S. § 702(b) and reversed, sustaining the preliminary objections of CYS and dismissing the reports of intention to adopt. We granted allocatur to review the standing of foster parents to initiate adoption proceedings without the consent of the agency which has legal custody and has placed the children in the foster home.

Appellants, the Cunninghams, argue that the adoption act provides that "[a]ny individual may become an adopting parent," 23 Pa.C.S. § 2312, and does not exclude foster parents. Appellants cite several Superior Court cases in which parties other than parents were awarded custody, establishing that parties other than parents may have standing in custody and adoption matters. Appellants claim that the agency decision was based on impermissible age discrimination and was not in the best interest of the children. Appellants argue that the Superior Court erred in holding that they had no standing to initiate adoption proceedings without the consent of CYS inasmuch as the Supreme Court, in Hess, supra, 530 Pa. 218, 608 A.2d 10, held that such consent is not essential and may be dispensed with if unreasonably withheld. Determining whether nonconsent is reasonable requires a hearing; appellants therefore argue that the need for such a determination would necessarily preclude dismissal on preliminary objections for lack of standing. According to appellants, the polestar in adoption proceedings--the best interest of the children--cannot be pursued unless the court permits the participation of foster parents such as the Cunninghams who have demonstrated love and commitment in providing long-term care for the children.

This entire argument is based on the premise that Hess affected the requirement of agency consent, not only in adoptions involving grandparents, as in Hess, but in all adoptions. The Superior Court properly rejected appellants' premise, explaining its interpretation and application of Hess to this case as follows:

In analyzing the applicability of Hess to the instant case, we have no doubt that the Supreme Court clearly was persuaded by the significance of the relationship of the grandparents to the children. The Court repeatedly emphasized this fact. The entire analysis by the Supreme Court revolved around the relationship of the appellees to the children. Indeed, the Court relied upon specific statutory provisions exclusive to grandparents. For example, the Court noted that 23 Pa.C.S. § 2531(c) specifically envisions that grandparents might choose to adopt their grandchildren. The Court stated, "[T]he Act contemplates that a grandparent might choose to adopt his or her grandchild, and allows the grandparent to benefit from the relationship to the child by relieving the grandparent of the obligation to file a Report of Intention to Adopt." In re Adoption of Hess, id., 530 Pa. at 224, 608 A.2d at 13. The Court went on to state that the various requirements indicate "that a relationship between the proposed adoptive parent and the adoptee is a relevant consideration." Id. There is no such relationship in the instant case.

....

Finally, in discussing the parameters of the majority's holding, Justice Zappala, in a dissenting opinion, stated, "I cannot conceive that the majority would allow an individual who was unrelated to the child to intervene in the proceeding...." In re Adoption of Hess, id., 530 Pa. at 233, 608 A.2d at 18 (Zappala, J., dissenting). This is but another confirmation for the position that it was the grandparents' familial relationship to the children which controlled the outcome of the case.

We believe Hess is confined to the facts and considerations of that case, none of which is present herein. Instead, the established law in this Commonwealth, as most recently reaffirmed in In re Adoption of S.C.P., [364 Pa.Super. 257, 527 A.2d 1052 (1987) ], controls the result in this case. We held in S.C.P. that 23 Pa.C.S. § 2531(a), which describes who may file a report of intention to adopt, does not encompass foster parents. We reiterated, "[F]oster parents have no standing to adopt a child placed in their custody until the absolute, unequivocal, written consent of the children's legal custodian or other person whose consent was necessary was given." Id., 364 Pa.Super. at 260, 527 A.2d at 1054, quoting Priester v. Fayette County Children and Youth Services, [354 Pa.Super. 562, 566, 512 A.2d 683, 684 (1986) ]. As we stated in S.C.P., application of this holding to the facts of the instant case effectively resolves this appeal.

Chester County Children and Youth Services v. Cunningham, 431 Pa.Super. 421, 425-27, 636 A.2d 1157, 1160 (1994).

Hess applied to grandparents only, as the Superior Court recognized; it was based only on the importance of consanguinity and the numerous legislative provisions unique to grandparents. Indeed, this author, together with two other members of the court, dissented from that holding, which must be viewed as a narrow extension of grandparental rights. It is not the intention of this court to ignore the clear language of the adoption statute by dispensing with the requirement of agency consent in the case of foster parents or anyone else besides grandparents.

Appellants rely on 23 Pa.C.S. § 2531(a) to establish their right to seek adoption, raising the issue of an apparent conflict between that provision and 23 Pa.C.S. § 2711(a)(5). Title 23, Pa.C.S. § 2531(a), describing who may file a report of intention to adopt, states:

(a) General rule.--Every person now having or hereafter receiving or retaining custody or physical care of any child for the purpose or with the intention of adopting a child under the age of 18 years shall report to the court in which the petition for adoption will be filed.

Section 2711(a)(5), part of a list of people and entities whose consents to adoption are required, includes:

(5) The guardian of the person of an adoptee under the age of 18 years, if any there be, or of the person or persons having the custody of the adoptee, if any such person can be found, whenever the adoptee has no parent whose consent is required.

Appellants attempt to avoid the force of the latter section by asserting inclusion in the former. They claim to fit narrowly into section 2531(a) as people "retaining ... physical care ... with the intention of adopting...." As experienced foster parents, however, appellants "knew that they were embarking on a temporary relationship. They...