In re GC

• Decision Date: 22 July 1999
• Citation: 735 A.2d 1226,558 Pa. 116
• Parties: In the Interest of G.C., A Minor Child. Appeal of M.S. and B.S. (Two Cases).
• Court: Pennsylvania Supreme Court

558 Pa. 116

735 A.2d 1226

In the Interest of G.C., A Minor Child.

Appeal of M.S. and B.S.(Two Cases).

Supreme Court of Pennsylvania.

Argued December 9, 1997.

Decided July 22, 1999.

Thomas L. Wenger, Thomas A. Hutton, Harrisburg, for Marvin and Brenda Schadel, Appellants.

Jeffrey L. Mensch, Mifflinburg, for G.C., A Minor Child.

Leslie W. Bryden, Sunbury, for Amy Pursel, Natural Mother.

David D. Noon, Sunbury, for David & Maryanne Pursel.

John A. Carpenter, Sunbury, Michael Robinson, for Northumberland Co. Child and Youth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

ORDER

PER CURIAM.

The Court being equally divided, the Order of the Superior Court is AFFIRMED.

Chief Justice FLAHERTY and Justice CAPPY join this Opinion In Support of Affirmance.

Justice NIGRO files an opinion in support of reversal.

Justice NEWMAN files an opinion in support of reversal in which Justice CASTILLE joins.

OPINION IN SUPPORT OF AFFIRMANCE

ZAPPALA, Justice.

The sole issue before us on appeal is whether foster parents have standing to seek or contest awards of custody concerning their foster children.The Superior Court held that they do not have standing.We affirm.On July 24, 1992, G.C. was born to Amy Pursel and Travis C.On September 21, 1992, G.C. was admitted to Geisinger Medical Center suffering from trauma, bruising around his left eye, a torn upper frenulum and a displaced left parietal skull.On the same day G.C. was admitted to the emergency room, Northumberland County Children and Youth Services(CYS) received anonymous information indicating that G.C.'s injuries were a direct result of serious child abuse.This allegation was later confirmed by a CYS investigation and independent medical evidence.Five individuals were named by the anonymous source as possible perpetrators of the abuse; one of the named individuals was G.C.'s maternal grandfather, David Pursel.

On September 25, 1992, upon his release from the hospital, G.C. was placed in the care of Appellants, foster parents approved by CYS.G.C. was adjudicated dependent and legal custody was awarded to CYS pursuant to the Juvenile Act, 42 Pa.C.S. § 6351.Following G.C.'s placement with Appellants, supervised weekly visits were scheduled at their home with G.C.'s natural parents and with his maternal grandfather, David Pursel.In March of 1993, David Pursel petitioned the court to place G.C. with him.This request was denied but G.C. was permitted to visit with David Pursel and his wife at their home beginning in September of 1993.

G.C.'s natural parents, without the consent or knowledge of CYS, asked Appellants if they would adopt G.C. and Appellants agreed.On February 4, 1994, CYS requested that Amy Pursel voluntarily relinquish her parental rights and she agreed to do so on the condition that Appellants be permitted to adopt G.C. CYS refused the condition and further decided that G.C. would not be placed with Appellants.On May 24, 1994, David Pursel filed a petition seeking physical custody of G.C. Appellants filed their own petition to retain physical custody of G.C.

After hearings, at which Appellants were granted provisional standing in order to develop an adequate record, the court granted physical custody of G.C. to David Pursel; legal custody remained with CYS.¹Appellants appealed this decision to the Superior Court and the court addressed the question of whether Appellants had standing to seek or contest the custody award issued by the trial court.

After an extensive review of its jurisprudence regarding the issue of foster parent standing, an equally divided en bancpanel of the Superior Court concluded that foster parents lack standing to seek or contest custody awards concerning their foster children.²We are now asked to address this same question and, for the reasons that follow, we agree that foster parents lack standing in custody proceedings.

The Superior Court has addressed the issue of foster parent standing in a number of cases in a number of different contexts.In determining whether foster parents have standing, the court's primary focus in all cases has been on the nature of the foster parent/child relationship as established by the Legislative scheme.In In re Adoption of Crystal D.R.,331 Pa.Super. 501, 480 A.2d 1146(1984), the court addressed the issue of whether foster parents have standing to file petitions for the termination of parental rights.In Crystal, the foster parents were awarded physical custody of a two year old minor.After caring for the child for over four years, they filed a petition for the termination of parental rights and a report of their intention to adopt the child.The trial court entered an order terminating the natural parents' rights and awarded custody to the foster parents.On appeal, the Superior Court reversed based on its conclusion that the foster parents lacked standing.

In rejecting the argument made by the foster parents that they stood in loco parentis to the child, the court, generally, addressed the nature of the foster parent/child relationship.

The agency, while transferring physical custody to the foster parents, remains responsible for the care of the child, and may at any time be required by the child's interests to regain physical custody and terminate the foster parent's relationship to the child.

Id. at 505, 480 A.2d at 1149.Citing the United States Supreme Court's decision in Smith v. Organization of Foster Families,431 U.S. 816, 826-28, 97 S.Ct. 2094, 53 L.Ed.2d 14(1977)(footnotes and citations omitted), the court further noted that:

[t]he law transfers "care and custody" to the agency, . . . but day-to-day supervision of the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent.Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have full authority of a legal custodian.Moreover, the natural parent's placement of the child with the agency does not surrender legal guardianship: the parents retain authority to act with respect to the child in certain circumstances.

Crystal,331 Pa.Super. at 508, 480 A.2d at 1150.The Legislature has further defined the nature of the foster parent/child relationship by setting forth how the agency is to supervise the performance of the foster parents.

Before a child may be placed in a foster home, the home must be approved by the agency.35 Pa.Code § 3130.39.If their home is approved, the foster parents are paid for providing care for the child.42 Pa.C.S. § 6306;62 P.S. § 704.1.The agency supervises the placement, which entails enforcing regulations governing the child's health, § 3700.51, safety, § 3700.67, and discipline, § 3700.63, and in appropriate circumstances the agency may remove the child from the foster home....

Id. at 509, 480 A.2d at 1150(citations omitted).Based on the foregoing, the court in Crystal observed that "[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."Id.

Given the subordinate nature of the foster parent/child relationship, the Crystal court further noted the following:

[F]oster parents may not by pleading their love for the child escape their legal status.For in defining the foster parents' status as subordinate both to the agency's and to the child's parents', the Legislature has in no sense acted arbitrarily.Quite to the contrary, the foster parents' status reflects the Legislature's conviction that if possible, a child should grow up with its parents.When under the Juvenile Act a child is found dependent, the court may transfer to the agency only "temporary legal custody" of the child.42 Pa.C.S. § 6351(a)(2).The Legislature has recited that the purpose of this limitation is to "preserve the unity of the family whenever possible...,"42 Pa.C.S. § 6301(b)(1), and further, that this purpose is to be achieved "in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety."42 Pa.C.S. § 6301(b)(3).It is the foster parents' responsibility to help to achieve these purposes — not to subvert them.When foster parents enter into their relationship with the child, they know that the relationship is temporary; the agency has the authority to remove the child; and that the parents have the right to visit the child.55 Pa.Code § 3700.37 ....

Id. at 510, 480 A.2d at 1151(emphasis added).

Ultimately, the Crystal court concluded that because the relationship between foster parent and child is by its nature subordinate both to the relationship between the agency and the child and to the relationship between the child and the child's parents, it is the responsibility of the agency, not the foster parents, to seek a permanent home for the child.Thus, the court held the foster parents lacked standing to petition for the termination of parental rights.

In Priester v. Fayette County Children and Youth Services,354 Pa.Super. 562, 512 A.2d 683(1986), the court addressed the issue of whether former foster parents had standing to pursue an action for custody.In Priester,appellants, foster parents, were initially approved and given physical custody of a minor child.Pursuant to a subsequent court order, the child was placed in another foster home in which the child's brother resided.Appellants later filed a complaint seeking custody.Their complaint was later dismissed by the trial court for lack of standing.The Superior Court affirmed.Citing Crystal,the court emphasized that it is the nature of the foster parent/child relationship which warrants the conclusion that foster parents lack standing to seek custody.

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