Pennsylvania Supreme Court Ends “Prospective Adoptive Parent” Exception in Dependency Cases

The Pennsylvania Supreme Court recently ruled that foster parents and preadoptive parents do not have standing to intervene in juvenile dependency proceedings unless they have been awarded legal custody. The Court’s decision eliminates the judicially created “prospective adoptive parent” exception that previously allowed limited participation by foster parents seeking to adopt.

Case Background

S.W., a minor child, was removed from her biological mother’s care shortly after birth in September 2020 and placed with foster parents A.E. and Ann E. by the Allegheny County Office of Children, Youth and Families (CYF). The child remained in their care for nearly two years.

In 2022, CYF expressed concerns about the suitability of the placement and filed a petition seeking to remove S.W. from the foster home. The Juvenile Court held a hearing, and although the foster parents attended the hearing and were permitted to speak, they did not formally request to intervene in the dependency proceedings. At the conclusion of the hearing, the juvenile court granted CYF’s petition, and S.W. was removed and placed with a different foster family.

Several weeks later, the foster parents filed a motion to intervene and for the return of S.W., asserting they had acted as de facto parents and intended to adopt the child. The Juvenile Court denied the motion, citing that the foster parents lacked standing under the Juvenile Act because the court had not awarded them any form of legal custody and they had not requested custody of the children at the time of removal.

Appeal to the Superior Court

The foster parents appealed to the Pennsylvania Superior Court, which reversed the trial court’s order. Relying on precedent, including Mitch v. Bucks County CYS and In re M.R.F., III, the Superior Court concluded that foster parents may be granted limited standing in dependency proceedings when they have attained “prospective adoptive parent” status. 

To qualify as a “prospective adoptive parent,” a foster parent needed to demonstrate a legitimate, genuine, and reasonable expectation of adopting the child. Foster parents could meet this threshold by providing long-term care, completing an adoption program, being identified by the county agency as a pre-adoptive resource, and having adoption recognized as a goal by the court or agency.

The Superior Court found that the foster parents’ long-term care of S.W., their expressed intent to adopt, and CYF’s prior support of the placement supported a finding of prospective adoptive status. However, the panel was split: one judge questioned whether the exception could still stand in light of Section 6336.1 of the Juvenile Act, and another suggested that legislative changes were needed to expand standing for foster parents more broadly.

Supreme Court Review and Ruling

The Pennsylvania Supreme Court granted review to resolve whether the prospective adoptive parent exception survived the 1998 enactment of 42 Pa.C.S. § 6336.1, which governs standing in dependency proceedings. The statute gives foster parents the right to notice and to be heard, but explicitly states that they do not have legal standing unless granted custody.

Although the case became technically moot because the foster parents ultimately withdrew their motion for intervention and for S.W. ‘s return, the Court addressed the legal issue due to its recurring public importance and recurring nature. Following briefs and argument, the Supreme Court concluded the legislature’s enactment of Section 6336.1 rescinded the common law exception. The Court emphasized that statutory text governs, and Section 6336.1 clearly limits standing to parties with legal custody:

“Where the General Assembly has explicitly addressed the scope of legal standing in dependency proceedings, courts may not supplement or override that legislative choice through judicially created exceptions.”

Accordingly, the Court reversed the Superior Court’s decision and held that preadoptive or long-term foster parents without legal custody do not have standing to intervene in dependency matters even if they had an intent to adopt.

Key Takeaways

• Foster parents do not have standing in dependency proceedings unless they have been awarded legal custody, regardless of their intent or expectation to adopt.
• The “prospective adoptive parent” exception is no longer valid under Pennsylvania law.
• Foster parents retain only limited rights under Section 6336.1: the right to notice of hearings and to be heard, but not to intervene.

Implications

This ruling clarifies a long-uncertain area of dependency law and affirms the primacy of statutory language over judicially created exceptions. While some judges and attorneys have called for broader recognition of foster parents’ roles, especially in the case of long-term placements, the Supreme Court left that decision to the General Assembly. Until and unless the legislature amends the Juvenile Act, foster and preadoptive parents’ rights are limited in dependency proceedings unless they have been awarded legal custody. If you are a foster or preadoptive parent facing a dependency proceeding, contact one of Obermayer family law attorneys to understand your rights and explore your legal options.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.