In the Interest of: S.B., a Minor

J-S65016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: S.B., A MINOR, IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: C.H., AUNT,

Appellant No. 1105 EDA 2015

Appeal from the Order Entered March 12, 2015

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-DP-0000895-2013, FID No. 51-FN-388415

BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2015

Appellant, C.H., the maternal aunt of the subject child, S.B. (“Child”),

who was born in July of 2011, appeals from the March 12, 2015 permanency

review order in this dependency matter. The order denied Appellant’s

motion to intervene in the dependency proceedings because Appellant lacked

standing.1 After careful review, we affirm.

In its opinion entered on July 1, 2015, the trial court set forth the

factual background and procedural history of this appeal, as follows:

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1

The order also continued Child’s foster-care placement, and it continued

the goal-change proceedings to allow Child’s mother, B.B. (“Mother”) an

opportunity to consider voluntarily relinquishing her parental rights to Child.

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On April 30, 2013, [t]he Philadelphia Department of

Human Services, (“DHS”), obtained an Order of Protective

Custody (“OPC”) based upon a General Protective Services

(“GPS”) Report on April 26, 2013, alleging that the Child’s

Mother (“B.B.”) was high on wet [a street drug], sitting on

someone’s front steps while the Child was sitting in a stroller

crying. The OPC indicated that Mother appeared belligerent and

was unable to provide an address as her place of residence.

Mother was also walking the streets late at night with the [c]hild.

The OPC also alleged that the Child was behind in her

immunizations and that Mother[,] who had been hospitalized at

Belmont in the past, had some untreated mental health issues.

On May 2, 2013, a Shelter Care Hearing was held[,] at

which time sufficient evidence was presented to support that the

return of the Child to Mother would not be in the best interest of

the Child. At the time of the Hearing, the Child was residing

with the Appellant. At the conclusion of the Hearing, the Order

of Protective Custody was lifted, and Temporary Legal Custody

was ordered to remain with DHS. (DRO, 5/2/13). A

Dependency Petition was thereafter filed by DHS on May 8,

2013.

On May 9, 2013, following an Adjudicatory Hearing, the

Child was adjudicated dependent on the grounds of present

inability based upon the allegations contained in the

Dependen[cy] Petition. Temporary Legal Custody of the Child

remained with DHS[,] who [sic] continued to be in foster care

with Appellant. [The trial] Court ordered that a Kinship referral

be made forthwith. (DRO, 5/9/13).

On December 31, 2013, DHS obtained an OPC on Child’s

sibling, X.B., in response to a Child Protective Services (“CPS”)

Report that she was the victim of sexual abuse by the grandson

of the Appellant.

On January 10, 2014, X.B. was adjudicated dependent by

the [trial court]. On this date, both Child and [her] sibling were

removed from the home of Appellant. A Permanency Review

Hearing was held for Child on February 27, 2014, at which time

[the trial court’s] findings confirmed that Child had been

removed from Appellant’s home on January 20, 2014. [The trial

court] ordered that Child be placed in Foster Care through New

Foundations. (DRO, 2/27/14).

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Permanency Review Hearings were held on May 29, 2014

and August 28, 2014, during which time Child remained in a pre-

adoptive Foster Home through New Foundations. (DRO, 5/29/14

and 8/28/14). At the conclusion of the Permanency Review

Hearing of August 28, 2014, the case was listed for a Goal

Change Termination Hearing.

Goal Change Termination Hearings were scheduled for

November 20, 2014 and February 5, 2015, but had to be

continued based upon the unavailability of a Judge. During this

time[,] the Child remained in continuous care in the same Pre-

Adoptive Foster Home through New Foundations. A Goal Change

Termination Hearing was scheduled for March 12, 2015. (DRO,

11/20/14 and 2/5/15). In January 2015, DHS filed a Petition to

Terminate Parental Rights and to Change the Goal to Adoption

for Child and siblings X.B. and C.B.

On February 17, 2015, the Appellant filed a Motion to

Intervene in Child’s Dependency action. On March 10, 2015, a

Motion to Dismiss the Petition to Intervene was filed by the Child

Advocate. On March 12, 2015, prior to a Goal Change and

Termination Hearing, [the trial court] denied Appellant’s Motion

to Intervene. (N.T., 3/12/2015, p. 4). This appeal followed.

Trial Court Opinion, 7/1/15, at 1-3. Both the trial court and Appellant have

complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues, which are presented,

verbatim, as follows:

1. Whether the Trial Judge erred and/or abused its discretion as

a matter of law in denying Maternal Aunt, C.H.’s petition to

intervene as she could have been joined as an original party in

the action or could have joined therein.

2. Whether the Trial Court erred or abused its discretion as a

matter of law by denying Maternal Aunt, C.H.’s petition to

intervene in this action in that any determination in this action

may affect any legally enforceable interest of C.H. pursuant to

Pennsylvania Rule of Civil Procedure 2326-2350.

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3. Whether the Trial Court erred or abused its discretion as a

matter of law by denying Maternal Aunt, C.H.’s petition to

intervene under the controlling statue governing intervention,

Pennsylvania Rule of Civil Procedure No. 2327.

Appellant’s Brief at 3.

Our Supreme Court set forth the standard of review for dependency

cases as follows:

The standard of review in dependency cases requires

an appellate court to accept the findings of fact and

credibility determinations of the trial court if they are

supported by the record, but does not require the

appellate court to accept the lower court’s inferences

or conclusions of law. Accordingly, we review for an

abuse of discretion.

In re R.J.T., 608 Pa. 9, 28-29, 9 A.3d 1179, 1190 (2010). An

issue regarding standing to participate in dependency

proceedings is a question of law warranting plenary review, and

our scope of review is de novo. See In re S.H.J., 78 A.3d

1158, 1160 (Pa. Super. 2013); In re J.S., 980 A.2d 117, 120

(Pa. Super. 2009). “The question of standing is whether a

litigant is entitled to have the court decide the merits of the

dispute or of particular issues.” See also Silfies v. Webster,

713 A.2d 639, 642 (Pa. Super. 1998)

In re C.R., 111 A.3d 179, 182 (Pa. Super. 2015). See also In the

Interest of F.C., III, 2 A.3d 1201, 1213 n.8 (Pa. 2010) (stating that for a

question of law, our standard of review is de novo, and our scope of review

is plenary). Because Appellant’s issues are interrelated, we address them

concurrently.

In each of her issues, Appellant relies on Pa.R.C.P. 2327 governing

intervention in civil cases, which provides as follows:

Rule 2327. Who May Intervene

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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

(1) the entry of a judgment in such action or the

satisfaction of such judgment will impose any liability upon such

person to indemnify in whole or in part the party against whom

judgment may be entered; or

(2) such person is so situated as to be adversely affected

by a distribution or other disposition of property in the custody

of the court or of an officer thereof; or

(3) such person could have joined as an original party in

the action or could have been joined therein; or

(4) the determination of such action may affect any legally

enforceable interest of such person whether or not such person

may be bound by a judgment in the action.

Pa.R.C.P. 2327.

With regard to standing in juvenile court matters, Section 6336.1 of

the Juvenile Act, 42 Pa.C.S. § 6301, et seq., provides as follows:

§ 6336.1. Notice and hearing

(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 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. § 6336.1.

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In its brief, the Department of Human Services (“DHS”) asserts that

the intervention procedure in the dependency matters in this appeal are

governed by the Pennsylvania Rules of Juvenile Court Procedure

(“Pa.R.J.C.P.”), and not the Rules of Civil Procedure. DHS’s Brief at 5, 7.

The Pennsylvania Rules of Juvenile Court Procedure that are relevant

in this matter are as follows:

Rule 1100. Scope of Rules

A. These rules shall govern dependency proceedings in all

courts. Unless otherwise specifically provided, these

rules shall not apply to orphans’ court, domestic relations

and delinquency proceedings.

B. Each of the courts exercising dependency jurisdiction,

as provided in the Juvenile Act, 42 Pa.C.S. § 6301 et

seq., may adopt local rules of procedure in accordance

with Rule 1121.

Comment: The Pennsylvania Rules of Juvenile Court

Procedure are split into two categories: delinquency

matters and dependency matters. All delinquency

matters are governed by Chapters One through Ten

(Rules 100-1099). All dependency matters are

governed by Chapters Eleven through Twenty (Rules

1100 – 2099).

Unless specifically provided in these rules, the

Pennsylvania Rules of Civil Procedure and the

Pennsylvania Rules of Criminal Procedure do

not apply to dependency proceedings

commenced pursuant to Rule 1200 and 42

Pa.C.S. § 6301 et seq.

These rules govern proceedings when the Juvenile

Act vests jurisdiction in the Court of Common Pleas.

See 42 Pa.C.S. §§ 6321 and 6302.

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Each judicial district may promulgate local rules that

follow the requirements of Rule 1121 and Pa.R.J.A.

103.

Note: Rule 1100 adopted August 21, 2006, effective February 1,

2007. Amended May 12, 2008, effective immediately.

Pa.R.J.C.P. 1100 (emphasis added).

Rule 1133. Motion to Intervene.

A. Contents. The motion to intervene shall include:

(1) the name and address of the person moving to intervene;

(2) the relationship of the intervening person to the child;

(3) the contact between the child and the intervening person;

(4) the grounds on which intervention is sought; and

(5) the request sought.

B. Action by court. Upon the filing of a motion to intervene

and after a hearing, the court shall enter an order granting or

denying the motion.

Comment: Under paragraph (B), a motion may

be denied if, among other reasons, there are

insufficient grounds for the motion, the interest

of the movant is already adequately

represented, the motion for intervention was

unduly delayed, or the intervention will unduly

delay or prejudice the adjudication of

dependency or the rights of the parties.

To move for intervention in a dependency case, a

person is to show that the interest is substantial,

direct, and immediate. See, e.g., South Whitehall

Township Police Serv. v. South Whitehall

Township, 521 Pa. 82, 555 A.2d 793 (1989).

Standing is conferred upon a person if the person

cares for or controls the child or is accused of

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abusing the child. In re J.P., 832 A.2d 492 (Pa.

Super. Ct. 2003); In re L.J., 456 Pa. Super. 685,

691 A.2d 520 (1997). See also R.M. Baxter, 565

Pa. 619, 777 A.2d 446 (2001) (grandparent

standing); Mitch v. Bucks Co. Children and Youth

Social Service Agency, 383 Pa. Super. 42, 556

A.2d 419 (1989) (prospective adoptive parent

standing); In re M.K., 431 Pa. Super. 198, 636 A.2d

198 (1994) (alleged abuser standing). For

distinction between foster parent and prospective

adoptive parent standing, see In re N.S., 845 A.2d

884 (Pa. Super. Ct. 2004).

A non-custodial parent may intervene in a

dependency petition filed by a third party to protect

the child from being adjudicated dependent and

placed in the custody of the Commonwealth. In re

Anita H., 351 Pa. Super. 342, 505 A.2d 1014

(1986).

See also In re Michael Y., 365 Pa. Super. 488, 530

A.2d 115 (1987) and In re R.T. & A.T., 405 Pa.

Super. 156, 592 A.2d 55 (1991) for additional

parties to proceedings.

See Rule 1344 for motions and Rule 1345 for

service.

Note: Rule 1133 adopted August 21, 2006, effective February 1,

2007.

Pa.R.J.C.P. 1133 (emphasis added).

In addressing the issues Appellant raises on appeal, the trial court

reasoned as follows:

The law on standing in a dependency action is clear.

Standing in dependency proceedings is limited to only three

classes of persons: (1) the parents of the juvenile whose

dependency is at issue; (2) the legal custodian of the juvenile

whose dependency is at issue; or (3) the person whose care and

control of the juvenile is in question. In the Interest of C.R.,

111 A.3d 179 (Pa. 2015).

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Clearly, the Appellant did not qualify as a party. Appellant

was not a parent of [Child], did not have legal custody of [Child,]

[and did not have] care and control of [Child]. While it is clear

that [Child] was under the care of Appellant at the inception of

the case, it is also undisputed that [Child] was removed from her

care by this Court on January 10, 2014. Appellant took no

action to challenge this Court’s Order [to] attempt to obtain

custody of Child until 13 months later.

Appellant also contends that she should be permitted to

intervene in [Child’s] Goal Change Termination Hearing based

upon Pennsylvania Rule of Civil Procedure 2327. Pa.R.C.P.

[2327](4) provides that at any time during the pendency of an

action, a non-party shall be permitted to intervene if “the

determination of such action may affect any legally enforceable

interest of such person whether or not such person may be

bound by a judgment in the action.” The Pennsylvania Supreme

Court has found that the exact boundaries of what constitutes a

legally enforceable interest are not clear. Pennsylvania

Railroad Co. v. Hughart, 222 A.2d 736 (Pa. 1966). The fact

that a proceeding may, in some way, affect the proposed

intervenor is not sufficient to invoke a “legally enforceable

interest.” In re L.J., 691 A.2d 520 (Pa. Super. 1997).

In the instant case, the Appellant has failed to identify any

legally enforceable interest. As discussed above, there are only

three circumstances when a person has a legally enforceable

interest or standing[,] and the Appellant has not met any of

these three requirements. Appellant merely alleges that she has

bonded with the Child and established an emotional connection.

Even if Appellant had established a legally enforceable

interest, Appellant’s Motion was properly denied based upon

undue delay. Under Pennsylvania Rule of Civil Procedure

2329(3), an application for intervention may be refused if the

petitioner has unduly delayed in making an application for

intervention or if the intervention will unduly delay, embarrass or

prejudice the adjudication of the rights of the parties. Appellant

filed her Motion to Intervene in February [of] 2015. Between

January 10, 2014 and [the] filing of Appellant’s Motion, the

Court had conducted several Permanency Review Hearings. The

Appellant did not file her Motion until 13 months after the Child

was removed from her care. During that 13[-]month period, the

Child was in a pre-adoptive home with her siblings[,] where she

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bonded with her foster parents[,] who wished to adopt all three

children. To allow Appellant to intervene after such a lengthy

period of delay would have prejudiced the rights of all three

minor children[,] who were entitled to permanency.

Trial Court Opinion, 7/1/15, at 4-6.

Based on the comment to Pa.R.J.C.P. 1100, which states, “Unless

specifically provided in these rules, the Pennsylvania Rules of Civil

Procedure . . . do not apply to dependency proceedings commenced

pursuant to . . . [the Juvenile Act,] 42 Pa.C.S. § 6301 et seq.,” we conclude

that the Pennsylvania Rules of Civil Procedure are not applicable in this

matter. Appellant’s arguments regarding the application of Rule 2327 of the

Pennsylvania Rules of Civil Procedure are misplaced. Thus, we need not

discuss the merits of Appellant’s arguments concerning Pa.R.C.P. 2327(3)

and (4) in her first issue or Pa.R.C.P. 2327(2) in her second issue because

they do not apply.

We next address Appellant’s argument in her second issue that she

has in loco parentis standing. Appellant relies on T.B. v. L.R.M., 786 A.2d

913 (Pa. 2001), in arguing that our Supreme Court held that a child’s best

interest requires that a third party be granted standing to have the

opportunity to fully litigate the issue of whether the in loco parentis

relationship should be maintained. Appellant’s Brief at 9-10. Appellant

states that Child has lived with her and that she provided Child with care, a

nurturing environment, and affection, thus assuming a stature like that of a

parent. Id. at 10. Appellant suggests that it is in Child’s best interest for

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Appellant to be afforded standing in the dependency proceedings. Id. at 9-

10. Appellant argues that DHS removed Child from her home without cause,

and she contends that the denial of her petition to intervene effectively

terminated any opportunity for her to demonstrate and litigate whether her

relationship with Child should be maintained. Id. at 10.

In Peters v. Costello, 891 A.2d 705 (Pa. 2005), our Supreme Court

outlined the relevant principles as follows:

The term in loco parentis literally means “in the place of a

parent.” Black’s Law Dictionary (7th Ed. 1991), 791.

The phrase “in loco parentis” refers to a person who puts

oneself [sic] in the situation of a lawful parent by

assuming the obligations incident to the parental

relationship without going through the formality of a legal

adoption. The status of in loco parentis embodies two

ideas; first, the assumption of a parental status, and,

second, the discharge of parental duties. . . . The rights

and liabilities arising out of an in loco parentis

relationship are, as the words imply, exactly the same as

between parent and child.

Peters, 891 A.2d at 710 (citation and footnote omitted).

This Court has stated that a third party cannot grant himself or herself

in loco parentis status in defiance of the parents’ wishes and the parent/child

relationship. Gradwell v. Strausser, 610 A.2d 999, 1003 (Pa. Super.

1992).2 See E.W. v. T.S., 916 A.2d 1197, 1205 (Pa. Super. 2007) (stating,

“the law provides that in loco parentis status cannot be achieved without the

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2

For purposes of custody disputes, anyone other than a parent is a third

party. Gradwell, 610 A.2d at 1001.

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consent and knowledge of, and in disregard of the wishes of a parent”). The

frequency of a caretaker’s services does not confer in loco parentis status.

Argenio v. Fenton, 703 A.2d 1042, 1044 (Pa. Super. 1997) (holding that a

grandmother’s role as a child’s frequent caretaker was insufficient to confer

standing to file custody dispute against the child’s birth father).

In In re C.R., a former foster mother of two dependent children

appealed orders dismissing her motions for a permanency review hearing to

determine the placement of the children under section 6351 of the Juvenile

Act. The former foster mother filed the motions approximately six months

after the removal of the children from her home. This Court found that the

former foster mother was seeking to intervene in the dependency

proceedings through her motions.

The panel explained the following:

party status in dependency proceedings is limited to

only three classes of persons: “(1) the parents of the

juvenile whose dependency is at issue; (2) the legal

custodian of the juvenile whose dependency is at

issue; or (3) the person whose care and control of

the juvenile is in question.” In the Interest of

L.C., II, 900 A.2d 378, 381 (Pa. Super. 2006).

In re S.H.J., 78 A.3d [1158,] at 1160-1161 [(Pa. Super.

2013)].

These categories logically stem from the fact that

upon an adjudication of dependency, the court has

the authority to remove a child from the custody of

his or her parents or legal custodian. Due process

requires that the child’s legal caregiver, be it a

parent or other custodian, be granted party status.

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Id. at 1161 (citation, quotation marks, emphasis, and some

punctuation omitted). This Court has consistently held that

foster parents and persons acting in loco parentis do not have

standing to intervene in dependency cases. Id. at 1161 (citing,

inter alia, In re J.S., 980 A.2d 117, 122-23 (Pa. Super. 2009)).3

3

In In re J.S., a panel of this Court addressed an

appeal, by the agency and the mother of the subject

child, from the trial court’s grant of permission for

the child’s foster parents [(who were the child’s aunt

and uncle)] to intervene in an ongoing dependency

proceeding. The panel reversed, citing section

6336.1. The panel reasoned that the foster parents

lacked legal custody and lacked standing both to

participate in the proceedings and to review the

juvenile court record. Id. at 122-23. Moreover, the

panel noted that the foster parents could not stand

in loco parentis to the child because their status as

foster parents was subordinate to the agency, which

maintained legal custody and was primarily

responsible for the child’s care and custody. Id. at

122 n.4.

In re C.R., 111 A.3d at 184-185 (footnote in original).

In In re C.R., the panel concluded that the former foster mother’s

failure to file a motion in relation to the removal hearings and instead

seeking to become a party to the dependency proceeding, in which she

lacked standing, was fatal to her appeals. The panel found the former foster

mother’s argument that she had been denied due process in the removal

process was misplaced. The panel stated that the former foster mother’s

six-month delay in filing her motions demonstrated that she was seeking to

advocate for herself as a foster parent deserving the placement of the

children with her, instead of seeking to act in the best interest of the

children. In re C.R., 111 A.3d at 186. This Court then reiterated that foster

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parents and persons acting in loco parentis do not have standing to

intervene in dependency cases. Id. at 185.

In the instant case, the trial court found that Appellant was not a party

under the three categories of parties set forth in the case law, citing In re

C.R. Therefore, for this additional reason, we reject Appellant’s argument

concerning in loco parentis standing in her second issue.

Next, we address Appellant’s contention in her third issue that the trial

court erred in denying her petition to intervene without taking evidence,

hearing argument, or issuing a rule to show cause. Appellant’s Brief at 8,

11. As in In re C.R., Appellant is Child’s former foster mother, and Child

was previously removed from her home. Appellant failed to file a motion in

relation to the removal hearings. Instead, she is seeking to become a party

to the dependency proceedings. The trial court found that Appellant’s

thirteen-month delay in filing her motion demonstrated that she was seeking

to advocate for herself as a foster parent, as opposed to acting in the best

interest of Child. We note that:

[u]nder paragraph (B), a motion may be denied if, among other

reasons, there are insufficient grounds for the motion, the

interest of the movant is already adequately represented, the

motion for intervention was unduly delayed, or the intervention

will unduly delay or prejudice the adjudication of dependency or

the rights of the parties.

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Pa.R.J.C.P. 1133 B cmt.3

The trial court also found as follows:

During that 13[-]month period, the Child was in a pre-adoptive

home with her siblings[,] where she bonded with her foster

parents[,] who wished to adopt all three children. To allow

Appellant to intervene after such a lengthy period of delay would

have prejudiced the rights of all three minor children[,] who

were entitled to permanency.

Trial Court Opinion, 7/1/15, at 6.

As in In re C.R., where the former foster mother delayed six months

in filing her motion to intervene seeking to argue that she was denied due

process in the removal of her foster children from her home, Appellant

herein delayed thirteen months in challenging the removal of Child from her

home through her motion to intervene. Pursuant to the comment to

Pa.R.J.C.P. 1133B, we find that the trial court did not commit an error of law

or abuse its discretion in summarily denying Appellant’s motion to intervene.

Thus, although the trial court did not specifically cite the comment to

Pa.R.J.C.P. 1133B, the court found insufficient grounds for the motion, the

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3

In Laudenberger v. Port Authority of Allegheny County, 436 A.2d

147, 151 (Pa. 1981), our Supreme Court indicated, with regard to the

explanatory notes and comments to the Pennsylvania Rules of Civil

Procedure, that the explanatory comments are not part of the rules but may

be used in construing the rules. Thereafter, Pa.R.C.P. 129 was amended to

include Rule 129(e), which states, “A note to a rule or an explanatory

comment is not part of the rule but may be used in construing the rule.”

Similarly, we have considered the comment to Pa.R.J.C.P. 1133B in

ascertaining the intent of the Supreme Court in promulgating the Juvenile

Court Rules of Procedure.

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motion for intervention was unduly delayed, and the intervention of

Appellant would unduly delay or prejudice the rights of the parties. There

was no need for any testimonial evidence or credibility determinations to

support this finding. Accordingly, we conclude that the trial court did not err

as a matter of law or abuse its discretion in summarily denying Appellant’s

motion to intervene.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2015

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4

This Court may affirm the trial court’s decision on any basis supported by

the record and need not depend on our agreement with the trial court’s

reasoning or rationale. Ario v. Ingram Micro, Inc., 965 A.2d 1194 (Pa.

2009); Brickman Group Ltd. v. CGU Ins. Co., 865 A.2d 918, 928 (Pa.

Super. 2004). Although the trial court’s reasoning in reaching its conclusion

did not address the Pennsylvania Rules of Juvenile Court Procedure, the trial

court’s disposition was not an error of law or abuse of discretion, as the trial

court discussed the same considerations set forth in the comment to Rule

1133B.

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